Office of Energy Efficiency and Renewable Energy, Department of Energy.

ACTION:

Final rule; technical correction.

SUMMARY:

On July 10, 2013 the U.S. Department of Energy (DOE) published a final rule in the Federal Register that amended the test procedure for residential furnaces and boilers (78 FR 41265). Due to drafting errors, that document incorrectly redesignated several subsections in section 10 of the DOE test procedure regulation for those products in the Code of Federal Regulations (CFR). This final rule corrects those errors and updates related cross-references to reflect the revised section numbers in section 10.

DATES:

Effective Date: August 30, 2013. The incorporation by reference of certain publications listed in the regulations was approved by the Director of the Federal Register as of November 10, 1997.

On July 10, 2013, DOE's Office of Energy Efficiency and Renewable Energy published a test procedure final rule in the Federal Register titled, “Test Procedures for Residential Furnaces and Boilers” (hereafter referred to as the “July 2013 final rule”). 78 FR 41265. Since the publication of that final rule, it has come to DOE's attention that, due to a technical oversight, a certain part of the July 2013 final rule incorrectly redesignated the numbering of subsections within section 10 of DOE's test procedure regulations for residential furnaces and boilers found at 10 CFR, part 430, subpart B, Appendix N, “Uniform Test Method for Measuring the Energy Consumption of Furnaces and Boilers.” In addition, the July 2013 final rule did not include instructions to update the cross-references within Appendix N to reflect the renumbered subsections. During the development of amended test procedure for residential furnaces and boilers, DOE did not intend to redesignate the sections as indicated on page 41272 of the July 2013 final rule, and did intend to update the cross-references within Appendix N to reflect the appropriate section renumbering. Instead, these incorrect redesignations were the result of drafting errors in the final rule. Today's final rule corrects these errors by appropriately redesignating the subsections within section 10 of Appendix N and updating the internal cross-references in Appendix N to reflect the revised subsection numbering.

II. Need for Correction

As published, the identified provisions in section 10 of 10 CFR part 430, subpart B, Appendix N will potentially result in confusion regarding how to correctly conduct DOE's residential furnaces and boilers test procedure. It was clearly not DOE's intention to change or eliminate additional sections beyond those explicitly cited for revision. At no place in the July 2013 final rule (or in the February 4, 2013 notice of proposed rulemaking that preceded it (78 FR 7681)) did DOE discuss such modifications. These were inadvertent changes. Because today's final rule would simply effectuate the intended and proper renumbering of the relevant regulatory provisions without making substantive changes to those provisions, the changes addressed in this document are technical in nature. Accordingly, DOE finds that there is good cause under 5 U.S.C. 553(b)(B) to not issue a separate notice to solicit public comment on the changes contained in this document. Issuing a separate notice to solicit public comment would be impractical, unnecessary, and contrary to the public interest.

III. Procedural Requirements

DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the July 10, 2013 test procedure final rule remain unchanged for this final rule technical correction. These determinations are set forth in the July 10, 2013 final rule. 78 FR 41265, 41269-41272.

For the reasons stated in the preamble, DOE amends part 430 of Chapter II, subchapter D of title 10, Code of Federal Regulations as set forth below:

PART 430—ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS1. The authority citation for part 430 continues to read as follows:Authority:

42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

2. Appendix N to subpart B of part 430 is amended by revising the introductory text after the appendix heading and sections 10.0 through 10.11 to read as follows:Appendix N to Subpart B of Part 430—Uniform Test Method for Measuring the Energy Consumption of Furnaces and BoilersNote:

The procedures and calculations that refer to off mode energy consumption (i.e., sections 8.6 and 10.11 of this appendix N) need not be performed to determine compliance with energy conservation standards for furnaces and boilers at this time. However, any representation related to standby mode and off mode energy consumption of these products made after July 1, 2013 must be based upon results generated under this test procedure, consistent with the requirements of 42 U.S.C. 6293(c)(2). For furnaces manufactured on or after May 1, 2013, compliance with the applicable provisions of this test procedure is required in order to determine compliance with energy conservation standards. For boilers, the statute requires that after July 1, 2010, any adopted energy conservation standard shall address standby mode and off mode energy consumption for these products, and upon the compliance date for such standards, compliance with the applicable provisions of this test procedure will be required.

10.0 Calculation of derived results from test measurements. Calculations shall be as specified in section 11 of ANSI/ASHRAE 103-1993 (incorporated by reference, see § 430.3) and the October 24, 1996, Errata Sheet for ASHRAE 103-1993, except for sections 11.5.11.1, 11.5.11.2, and appendices B and C; and as specified in sections 10.1 through 10.11 and Figure 1 of this appendix.

EffyHS = heating seasonal efficiency as defined in sections 11.2.11 (non-condensing systems), 11.3.11 (condensing systems), 11.4.11 (non-condensing modulating systems), and 11.5.11 (condensing modulating systems) of ANSI/ASHRAE 103-1993, except that for condensing modulating systems sections 11.5.11.1 and 11.5.11.2 are replaced by sections 10.2 and 10.3 of this appendix. EffyHS is based on the assumptions that all weatherized warm air furnaces or boilers are located outdoors, that warm air furnaces which are not weatherized are installed as isolated combustion systems, and that boilers which are not weatherized are installed indoors.

10.2 Part-Load Efficiency at Reduced Fuel Input Rate. Calculate the part-load efficiency at the reduced fuel input rate, EffyU,R, for condensing furnaces and boilers equipped with either step modulating or two-stage controls, expressed as a percent and defined as:

ER30AU13.000Where:LL,A = value as defined in section 11.2.7 of ASHRAE 103-1993,LG = value as defined in section 11.3.11.1 of ASHRAE 103-1993 at reduced input rate,LC = value as defined in section 11.3.11.2 of ASHRAE 103-1993 at reduced input rate,LJ = value as defined in section 11.4.8.1.1 of ASHRAE 103-1993 at maximum input rate,tON = value as defined in section 11.4.9.11 of ASHRAE 103-1993,QP = pilot flame fuel input rate determined in accordance with section 9.2 of ASHRAE 103-1993 in Btu/h,QIN = value as defined in section 11.4.8.1.1 of ASHRAE 103-1993,tOFF = value as defined in section 11.4.9.12 of ASHRAE 103-1993 at reduced input rate,LS,ON = value as defined in section 11.4.10.5 of ASHRAE 103-1993 at reduced input rate,LS,OFF = value as defined in section 11.4.10.6 of ASHRAE 103-1993 at reduced input rate,LI,ON = value as defined in section 11.4.10.7 of ASHRAE 103-1993 at reduced input rate,LI,OFF = value as defined in section 11.4.10.8 of ASHRAE 103-1993 at reduced input rate,CJ = jacket loss factor and equal to:= 0.0 for furnaces or boilers intended to be installed indoors= 1.7 for furnaces intended to be installed as isolated combustion systems= 2.4 for boilers (other than finned-tube boilers) intended to be installed as isolated combustion systems= 3.3 for furnaces intended to be installed outdoors= 4.7 for boilers (other than finned-tube boilers) intended to be installed outdoors= 1.0 for finned-tube boilers intended to be installed outdoors= 0.5 for finned-tube boilers intended to be installed in internal combustion system applicationsLS,SS = value as defined in section 11.5.6 of ASHRAE 103-1993 at reduced input rate,CS = value as defined in section 11.5.10.1 of ASHRAE 103-1993 at reduced input rate.

10.4.1.3 For furnaces and boilers equipped with two-stage controls, the national average number of burner operating hours at the maximum operating mode (BOHH) is defined as:

BOHH = XH EM/QINWhere:XH = as defined in 11.4.8.6 of ANSI/ASHRAE Standard 103-1993EM = as defined in section 10.4.1.1 of this appendixQIN = as defined in 11.4.8.1.1 of ANSI/ASHRAE Standard 103-1993

10.4.1.4 For furnaces and boilers equipped with step modulating controls, the national average number of burner operating hours at the modulating operating mode (BOHM) is defined as:

BOHM = XH EM/QIN,MWhere:XH = as defined in 11.4.8.6 of ANSI/ASHRAE Standard 103-1993EM = as defined in section 10.4.1.1 of this appendixQIN,M = QOUT,M/(EffySS,M/100)QOUT,M = as defined in 11.4.8.10 or 11.5.8.10 of ANSI/ASHRAE Standard 103-1993, as appropriateEffySS,M = as defined in 11.4.8.8 or 11.5.8.8 of ANSI/ASHRAE Standard 103-1993, as appropriate, in percent100 = factor that accounts for percent

10.4.2 Average annual fuel energy consumption for gas or oil fueled furnaces or boilers. For furnaces or boilers equipped with single-stage controls, the average annual fuel energy consumption (EF) is expressed in Btu per year and defined as:

EF = BOHSS (QIN −QP)+8,760 QPWhere:BOHSS = as defined in 10.4.1 of this appendixQIN = as defined in 11.2.8.1 of ANSI/ASHRAE Standard 103-1993QP = as defined in 11.2.11 of ANSI/ASHRAE Standard 103-19938,760 = as specified in 10.4.1.1 of this appendix

10.4.2.1 For furnaces or boilers equipped with either two-stage or step modulating controls, EF is defined as:

EF = EM + 4,600QPWhere:EM = as defined in 10.4.1.1 of this appendix4,600 = as specified in 11.4.12 of ANSI/ASHRAE Standard 103-1993QP = as defined in 11.2.11 of ANSI/ASHRAE Standard 103-1993

10.4.3 Average annual auxiliary electrical energy consumption for gas or oil-fueled furnaces or boilers. For furnaces and boilers equipped with single-stage controls, the average annual auxiliary electrical consumption (EAE) is expressed in kilowatt-hours and defined as:

EAE = BOHSS (yP PE + yIG PEIG + yBE) + ESOWhere:BOHSS = as defined in 10.4.1 of this appendixPE = as defined in 10.4.1 of this appendixyP = as defined in 10.4.1 of this appendixyIG = as defined in 10.4.1 of this appendixPEIG = as defined in 10.4.1 of this appendixy = as defined in 10.4.1 of this appendixBE = as defined in 10.4.1 of this appendixESO = as defined in 10.11 of this appendix.

10.4.3.1 For furnaces or boilers equipped with two-stage controls, EAE is defined as:

EAE = BOHR (yP PER + yIG PEIG + yBER) + BOHH (yP PEH + yIG PEIG + y BEH) + ESOWhere:BOHR = as defined in 10.4.1.2 of this appendixyP = as defined in 10.4.1 of this appendixPER = as defined in 9.1.2.2 and measured at the reduced fuel input rate of ANSI/ASHRAE Standard 103-1993, (incorporated by reference, see § 430.3)yIG = as defined in 10.4.1 of this appendixPEIG = as defined in 10.4.1 of this appendixy = as defined in 10.4.1 of this appendixBER = as defined in 9.1.2.2 of ANSI/ASHRAE Standard 103-1993, (incorporated by reference, see § 430.3) measured at the reduced fuel input rateBOHH = as defined in 10.4.1.3 of this appendixPEH = as defined in 9.1.2.2 of ANSI/ASHRAE Standard 103-1993, (incorporated by reference, see § 430.3) measured at the maximum fuel input rateBEH = as defined in 9.1.2.2 of ANSI/ASHRAE Standard 103-1993, (incorporated by reference, see § 430.3) measured at the maximum fuel input rateESO = as defined in 10.11 of this appendix.

10.4.3.2 For furnaces or boilers equipped with step-modulating controls, EAE is defined as:

EAE = BOHR (yP PER + yIG PEIG + yBER) + BOHM (yP PEH + yIG PEIG + y BEH) + ESOWhere:BOHR = as defined in 10.4.1.2 of this appendixyP = as defined in 10.4.1 of this appendixPER = as defined in 9.1.2.2 of ANSI/ASHRAE Standard 103-1993, (incorporated by reference, see § 430.3), measured at the reduced fuel input rateyIG = as defined in 10.4.1 of this appendixPEIG = as defined in 10.4.1 of this appendixy = as defined in 10.4.1 of this appendixBER = as defined in 9.1.2.2 of ANSI/ASHRAE Standard 103-1993, (incorporated by reference, see § 430.3) measured at the reduced fuel input rateBOHM = as defined in 10.4.1.4 of this appendixPEH = as defined in 9.1.2.2 of ANSI/ASHRAE Standard 103-1993, (incorporated by reference, see § 430.3) measured at the maximum fuel input rateBEH = as defined in 9.1.2.2 of ANSI/ASHRAE Standard 103-1993, (incorporated by reference, see § 430.3) measured at the maximum fuel input rateESO = as defined in 10.11 of this appendix.

EE = 100(2,080)(0.77)DHR/(3.412 AFUE) + ESOWhere:100 = to express a percent as a decimal2,080 = as specified in 10.4.1 of this appendix0.77 = as specified in 10.4.1 of this appendixDHR = as defined in 10.4.1 of this appendix3.412 = conversion to express energy in terms of watt-hours instead of BtuAFUE = as defined in 11.1 of ANSI/ASHRAE Standard 103-1993 (incorporated by reference, see § 430.3), in percent, and calculated on the basis of: ICS installation, for non-weatherized warm air furnaces; indoor installation, for non-weatherized boilers; or outdoor installation, for furnaces and boilers that are weatherized.ESO = as defined in 10.11 of this appendix.

10.6 Energy factor.

10.6.1 Energy factor for gas or oil furnaces and boilers. Calculate the energy factor, EF, for gas or oil furnaces and boilers defined as, in percent:

ER30AU13.002Where:EF = average annual fuel consumption as defined in 10.4.2 of this appendix.EAE = as defined in 10.4.3 of this appendix.EffyHS = Annual Fuel Utilization Efficiency as defined in 11.2.11, 11.3.11, 11.4.11 or 11.5.11 of ANSI/ASHRAE Standard 103-1993, in percent, and calculated on the basis of:ICS installation, for non-weatherized warm air furnaces;indoor installation, for non-weatherized boilers; oroutdoor installation, for furnaces and boilers that are weatherized.3,412 = conversion factor from kilowatt to Btu/h

10.6.2 Energy factor for electric furnaces and boilers. The energy factor, EF, for electric furnaces and boilers is defined as:

10.7 Average annual energy consumption for furnaces and boilers located in a different geographic region of the United States and in buildings with different design heating requirements.

10.7.1 Average annual fuel energy consumption for gas or oil-fueled furnaces and boilers located in a different geographic region of the United States and in buildings with different design heating requirements. For gas or oil-fueled furnaces and boilers, the average annual fuel energy consumption for a specific geographic region and a specific typical design heating requirement (EFR) is expressed in Btu per year and defined as:

EFR = (EF −8,760 QP)(HLH/2,080) + 8,760 QPWhere:EF = as defined in 10.4.2 of this appendix8,760 = as specified in 10.4.1.1 of this appendixQP = as defined in 11.2.11 of ANSI/ASHRAE Standard 103-1993HLH = heating load hours for a specific geographic region determined from the heating load hour map in Figure 1 of this appendix2,080 = as defined in 10.4.1 of this appendix

10.7.2 Average annual auxiliary electrical energy consumption for gas or oil-fueled furnaces and boilers located in a different geographic region of the United States and in buildings with different design heating requirements. For gas or oil-fueled furnaces and boilers, the average annual auxiliary electrical energy consumption for a specific geographic region and a specific typical design heating requirement (EAER) is expressed in kilowatt-hours and defined as:

EAER = (EAE − ESO) (HLH/2080) + ESORWhere:EAE = as defined in 10.4.3 of this appendixESO = as defined in 10.11 of this appendixHLH = as defined in 10.7.1 of this appendix2,080 = as specified in 10.4.1 of this appendixESOR = as specified in 10.7.3 of this appendix.

10.7.3 Average annual electric energy consumption for electric furnaces and boilers located in a different geographic region of the United States and in buildings with different design heating requirements. For electric furnaces and boilers, the average annual electric energy consumption for a specific geographic region and a specific typical design heating requirement (EER) is expressed in kilowatt-hours and defined as:

EER = 100(0.77) DHR HLH/(3.412 AFUE) + ESORWhere:100 = as specified in 10.5 of this appendix0.77 = as specified in 10.4.1 of this appendixDHR = as defined in 10.4.1 of this appendixHLH = as defined in 10.7.1 of this appendix3.412 = as specified in 10.5 of this appendixAFUE = as defined in 10.5 of this appendixESOR = ESO as defined in 10.11 of this appendix, except that in the equation for ESO, the term BOH is multiplied by the expression (HLH/2080) to get the appropriate regional accounting of standby mode and off mode loss.

10.8 Annual energy consumption for mobile home furnaces.

10.8.1 National average number of burner operating hours for mobile home furnaces (BOHSS). BOHSS is the same as in 10.4.1 of this appendix, except that the value of EffyHS in the calculation of the burner operating hours, BOHSS, is calculated on the basis of a direct vent unit with system number 9 or 10.

10.8.2 Average annual fuel energy for mobile home furnaces (EF). EF is same as in 10.4.2 of this appendix except that the burner operating hours, BOHSS, is calculated as specified in 10.8.1 of this appendix.

10.8.3 Average annual auxiliary electrical energy consumption for mobile home furnaces (EAE). EAE is the same as in 10.4.3 of this appendix, except that the burner operating hours, BOHSS, is calculated as specified in 10.8.1 of this appendix.

10.9 Calculation of sales weighted average annual energy consumption for mobile home furnaces. In order to reflect the distribution of mobile homes to geographical regions with average HLHMHF value different from 2,080, adjust the annual fossil fuel and auxiliary electrical energy consumption values for mobile home furnaces using the following adjustment calculations.

10.9.1 For mobile home furnaces, the sales weighted average annual fossil fuel energy consumption is expressed in Btu per year and defined as:

EF,MHF = (EF − 8,760 QP)HLHMHF/2,080+8,760 QPWhere:EF = as defined in 10.8.2 of this appendix8,760 = as specified in 10.4.1.1 of this appendixQP = as defined in 11.2.11 of ANSI/ASHRAE Standard 103-1993HLHMHF = 1880, sales weighted average heating load hours for mobile home furnaces2,080 = as specified in 10.4.1 of this appendix

10.9.2 For mobile home furnaces, the sales weighted average annual auxiliary electrical energy consumption is expressed in kilowatt-hours and defined as:

EAE,MHF = EAE HLHMHF/2,080Where:EAE = as defined in 10.8.3 of this appendixHLHMHF = as defined in 10.9.1 of this appendix2,080 = as specified in 10.4.1 of this appendix

We are superseding an existing airworthiness directive (AD) for all Alexander Schleicher GmbH & Co. Segelflugzeugbau Models AS -K13, Ka2B, Ka 6, Ka 6 B, Ka 6 BR, Ka 6 C, Ka 6 CR, K7, K8, and K 8 B sailplanes. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as misalignment of the automatic elevator control connection. We are issuing this AD to require actions to address the unsafe condition on these products.

DATES:

This AD is effective October 4, 2013.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of October 4, 2013.

ADDRESSES:

You may examine the AD docket on the Internet at http://www.regulations.gov or in person at the Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. The NPRM was published in the Federal Register on May 23, 2013 (78 FR 30791), and proposed to supersede AD 64-07-05, Amendment 701 (29 FR 3227, March 11, 1964) (“AD 64-07-05”). The NPRM proposed to correct an unsafe condition for the specified products.

Since we issued AD 64-07-05, the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, issued a new AD, AD No. 2013-0091, dated April 12, 2013 (referred to after this as “the MCAI”), to add additional sailplane models to the applicability and to add additional inspections of the elevator control connection. Alexander Schleicher GmbH & Co. Segelflugzeugbau has also issued revised service information to address the unsafe condition. The MCAI states:

A recent report has been received concerning a problem with the elevator control during take-off of an ASK 13 sailplane. The results of the technical investigation revealed a misalignment in the automatic elevator control connection, presumably caused by an incorrect repair or damage at the tail-plane-area. In addition, similar elevator connection failure during early 1960's which led to the issuance of LBA LTM 4/62. However, LTM, 4/62 did not apply to ASK 13 and ASK 18 sailplanes coming later into production.

This condition, if not detected and corrected, could lead to failure of the automatic elevator control connection, possibly resulting in loss of control of the sailplane.

For the reasons described above, this AD retains the requirements of EASA AD 2012-0246, which is superseded, and additionally requires, for K 7 and K 8 sailplanes, verification of embodiment of pushrod support modification, and depending on finding, pushrod support modification.

You may obtain further information by examining the MCAI in the AD docket.Comments

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (78 FR 30791, May 23, 2013) or on the determination of the cost to the public.

Conclusion

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (78 FR 30791, May 23, 2013) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (78 FR 30791, May 23, 2013).

Costs of Compliance

We estimate that this AD will affect 127 products of U.S. registry. We also estimate that it will take about .5 work-hour per product to comply with the new inspection requirements of this AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of the initial inspection required in this AD on U.S. operators to be $5,397.50, or $42.50 per product.

We have no way of determining the number of repetitive inspections an owner/operator will incur over the life of the sailplane.

In addition, we estimate that any necessary follow-on actions will take about 1 work-hour and require parts costing $119, for a cost of $204 per product. We have no way of determining the number of products that may need these actions.

We also estimate that it will take about 2 work-hours per product to comply with actions retained from AD 64-07-05 for Models Ka2B, Ka 6, Ka 6 B, Ka 6 BR, Ka 6 C, Ka 6 CR, K7, K8, and K 8 B sailplanes in this AD, which affects 112 products of U.S. registry, and may require parts costing $103, for a cost of $273 per product.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as misalignment of the automatic elevator control connection. The European Aviation Safety Agency (EASA) has issued a new AD to add additional sailplane models to the applicability and to add additional inspections of the elevator control connection. Alexander Schleicher GmbH & Co. Segelflugzeugbau has also issued revised service information to address the unsafe condition. We are issuing this AD to prevent failure of the automatic elevator control connection, which could result in loss of control.

(2) For Models Ka2B, Ka 6, Ka 6 B, Ka 6 BR, Ka 6 C, Ka 6 CR, K7, K8, and K 8 B: If any discrepancy is found during the inspection required in paragraph (f)(1) of this AD, before further flight, make any necessary repairs or modification.

Note to paragraph (f)(2) of this AD:

For guidance on making the necessary repairs or modification required in paragraph (f)(2) of this AD, you may refer to FAA Civil Aeronautics Manual (CAM) 18, Maintenance, Repair, And Alteration, Of Airframes, Powerplants, Propellers, And Appliances, dated December 15, 1959, which can be found on the Internet at: http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgccab.nsf/0/41df1277f2dc7e0e86257bcf005112bf/$FILE/CAM_18_1959.pdf, without handwritten annotations, as revised through November 15, 1962.

Unless already done, do the following actions specified in paragraphs (g)(1) and (g)(2) of this AD.

(1) For all models: Within 90 days after October 4, 2013 (the effective date of this AD) and repetitively thereafter at intervals not to exceed 12 months, inspect the elevator control rod in the tailplane following the Action section in Alexander Schleicher Technische Mitteilung (English translation: Technical Note) TM-Nr. 13 for Ka 2 and Ka 2b, TM-Nr. 26 for Ka 6, TM-Nr. 24 for K 7, TM-Nr. 30 for K 8, TM-Nr. 19 for ASK 13, and TM-Nr. 9 for ASK 18, all Berichtigung 1 (English translation: Revision 1), all dated January 8, 2013.

(2) For all models: During any inspection required in paragraph (g)(1) of this AD, if any bend and/or misaligned elevator control connection is detected, before further flight after the inspection, replace the elevator control connection with a serviceable part. Do the replacement following the Action section in Alexander Schleicher Technische Mitteilung (English translation: Technical Note) TM-Nr. 13 for Ka 2 and Ka 2b, TM-Nr. 26 for Ka 6, TM-Nr. 24 for K 7, TM-Nr. 30 for K 8, TM-Nr. 19 for ASK 13, and TM-Nr. 9 for ASK 18, all Berichtigung 1 (English translation: Revision 1), all dated January 8, 2013.

(h) Credit for Actions Done Following Previous Service Information

This AD provides credit for the initial inspection required in paragraph (g)(1) of this AD and any necessary replacement required in paragraph (g)(2) of this AD if already done before the effective date of this AD following the Action sections in Alexander Schleicher Technische Mitteilung (English translation: Technical Note) TM-Nr. 13 for Ka 2 and Ka 2b, TM-Nr. 26 for Ka 6, TM-Nr. 24 for K 7, TM-Nr. 30 for K 8, TM-Nr. 19 for ASK 13, and TM-Nr. 9 for ASK 18, dated August 30, 2012.

(i) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, Standards Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Jim Rutherford, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4165; fax: (816) 329-4090; email: jim.rutherford@faa.gov. Before using any approved AMOC on any sailplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

(j) Related Information

Refer to MCAI European Aviation Safety Agency (EASA) AD No. 2013-0091, dated April 12, 2013, which can be found in the AD docket on the Internet at http://www.regulations.gov; FAA Civil Aeronautics Manual (CAM) 18, Maintenance, Repair, And Alteration, Of Airframes, Powerplants, Propellers, And Appliances, dated December 15, 1959, which can be found on the Internet at: http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgccab.nsf/0/41df1277f2dc7e0e86257bcf005112bf/$FILE/CAM_18_1959.pdf, without handwritten annotations, as revised through November 15, 1962; and Alexander Schleicher Technische Mitteilung (English translation: Technical Note) TM-Nr. 13 for Ka 2 and Ka 2b, TM-Nr. 26 for Ka 6, TM-Nr. 24 for K 7, TM-Nr. 30 for K 8, TM-Nr. 19 for ASK 13, and TM-Nr. 9 for ASK 18, dated August 30, 2012, which can be obtained from the manufacturer at the address specified in paragraph (k)(4) of this AD, for related information.

(k) Material Incorporated by Reference

(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.

(3) The following service information was approved for IBR on October 4, 2013.

Alexander Schleicher Technische Mitteilung (English translation: Technical Note) TM-Nr. 13 for Ka 2 and Ka 2b, TM-Nr. 26 for Ka 6, TM-Nr. 24 for K 7, TM-Nr. 30 for K 8, TM-Nr. 19 for ASK 13, and TM-Nr. 9 for ASK 18, all Berichtigung 1 (English translation: Revision 1), all dated January 8, 2013, are co-published as one document. This service information contains German to English translation. EASA used the English translation in referencing the document from Alexander Schleicher GmbH & Co. Segelflugzeugbau. For enforceability purposes, we will cite references to the Alexander Schleicher GmbH & Co. Segelflugzeugbau service information as it appears on the document.

This service information contains German to English translation. EASA used the English translation in referencing the document from Alexander Schleicher GmbH & Co. Segelflugzeugbau. For enforceability purposes, we will cite references to the Alexander Schleicher GmbH & Co. Segelflugzeugbau service information as it appears on the document.

(5) You may view this service information at FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148.

(6) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc. Model DHC-8-400 series airplanes. This AD was prompted by reports of advance pneumatic detectors (APDs) for engine fire/overheat detector assemblies failing to reset after activation due to permanent deformation of the detector switch diaphragm after being exposed to high temperatures. This AD requires replacing all three APDs with new detector assemblies. We are issuing this AD to prevent a continued engine fire indication in the cockpit after the actual fire has been extinguished, which is misleading and might influence the pilot to conduct a potentially hazardous “off-airport” landing.

DATES:

This AD becomes effective October 4, 2013.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 4, 2013.

ADDRESSES:

You may examine the AD docket on the Internet at http://www.regulations.gov or in person at the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC.

We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. The SNPRM published in the Federal Register on April 9, 2013 (78 FR 21077). The notice of proposed rulemaking NPRM (77 FR 60060, October 2, 2012), which preceded the SNPRM, proposed to require replacing all three APDs with new detector assemblies. The SNPRM proposed to add airplanes to the applicability.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2012-07R1, effective December 21, 2012 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

There have been engine fires on DHC-8 Series 400 aeroplanes, where the “ENGINE FIRE, CHECK FIRE DETECT” warning and “FUEL OFF” handle lights failed to reset and remained illuminated after the fire was extinguished. An investigation has revealed that the existing engine fire/overheat detector assemblies “Advance Pneumatic Detectors (APD)” may fail to reset after activation due to permanent deformation of the detector switch diaphragm after being exposed to high temperatures.

This abnormal condition of a continued engine fire indication in the cockpit, after the actual fire has been extinguished, is misleading and may influence the pilot's decision to conduct a potentially hazardous “off-airport” landing, which is considered an unsafe condition that warrants mitigating action.

To mitigate this potentially hazardous condition, Bombardier has issued multiple service bulletins (SBs) [Bombardier Service Bulletins 84-26-08, Revision A, dated May 12, 2011; 84-26-09, Revision A, dated May 12, 2011; and 84-26-12, Revision B, dated October 12, 2012] to replace all three affected APDs with new detector assemblies that are not susceptible to the subject diaphragm deformation when exposed to excessive heat. * * *

This revised [Canadian] AD is issued to include the additional 26 aeroplane S/Ns in the applicability section of the AD. The additional S/Ns, 4374 through 4399, only affect the compliance with Part III of this [Canadian] AD.

You may obtain further information by examining the MCAI in the AD docket.Comments

We gave the public the opportunity to participate in developing this AD. We received no comments on the SNPRM (78 FR 21077, April 9, 2013) or on the determination of the cost to the public.

Conclusion

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed—except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the SNPRM (78 FR 21077, April 9, 2013) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the SNPRM (78 FR 21077, April 9, 2013).

Costs of Compliance

Based on the service information, we estimate that this AD affects 399 products of U.S. registry. We also estimate that it will take about 63 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $5,700 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD on U.S. operators to be $4,410,945, or $11,055 per product.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the MCAI, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section.

This AD was prompted by reports of advance pneumatic detectors (APDs) for engine fire/overheat detector assemblies failing to reset after activation due to permanent deformation of the detector switch diaphragm after being exposed to high temperatures. We are issuing this AD to prevent a continued engine fire indication in the cockpit after the actual fire has been extinguished, which is misleading and might influence the pilot to conduct a potentially hazardous “off-airport” landing.

(f) Compliance

You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.

(g) Installation

Within 6,000 flight hours or 30 months after the effective date of this AD, whichever occurs first, replace the APDs as specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, as applicable.

(1) For airplanes having S/Ns 4001 through 4373 inclusive: For the nacelle of the engine primary zone, remove any APD having part number (P/N) 10-1098 and install a new APD having P/N 10-1098-01, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-26-08, Revision B, dated September 24, 2012.

(2) For airplanes having S/Ns 4001 through 4373 inclusive: For the nacelle of the landing gear primary zone, remove any APD having P/N 10-1097 or 10-1097-01 and install a new APD having P/N 10-1097-02, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-26-09, Revision A, dated May 12, 2011.

(3) For all airplanes: For the propeller engine controller, remove any APD having P/N 10-1096, 10-1096-01, or 10-1096-02 (serial number is all numeric characters), and install a new APD having P/N 10-1096-02 (serial number is three alpha and four numeric characters), in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-26-12, Revision B, dated October 12, 2012.

(h) Credit for Previous Actions

(1) This paragraph provides credit for actions required by paragraph (g)(1) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraph (h)(1)(i) or (h)(1)(ii) of this AD, which are not incorporated by reference in this AD.

(2) This paragraph provides credit for actions required by paragraph (g)(2) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 84-26-09, dated March 11, 2011, which is not incorporated by reference in this AD.

(3) This paragraph provides credit for actions required by paragraph (g)(3) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraph (h)(3)(i) or (h)(3)(ii) of this AD, which are not incorporated by reference in this AD.

(1) Alternative Methods of Compliance (AMOCs): The Manager, New York Aircraft Certification Office (ACO), ANE-170, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the ACO, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

(j) Related Information

(1) Refer to Mandatory Continuing Airworthiness Information Canadian Airworthiness Directive CF-2012-07R1, effective December 21, 2012, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov.

(2) Service information identified in this AD that is not incorporated by reference may be obtained at the address specified in paragraphs (k)(3) and (k)(4) of this AD.

(k) Material Incorporated by Reference

(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

(4) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

We are adopting a new airworthiness directive (AD) for certain Airbus Model A330-200 and -300 series airplanes; Model A340-200 and -300 series airplanes; and Model A340-541 and -642 airplanes. This final rule was prompted by reports of wing tip brakes (WTBs) losing their braking function in service due to heavy wear on the brake discs. WTBs are designed to stop and hold the mechanical transmission of slats and flaps in certain failure cases. This final rule requires repetitive operational tests of certain WTB pressure-off-brakes (POBs) for performance on the flap and slat systems, and replacement of any affected WTB with a new or serviceable part if the test fails. This final rule also requires eventual replacement of all affected WTBs with a new part, which terminates the repetitive tests. We are issuing this final rule to prevent loss of the WTB braking function, and consequent inability of the flap or slat system to be stopped and held in position during operation, which could result in loss of control of the airplane.

DATES:

This AD is effective October 4, 2013.

The Director becomes the Federal Register approved the incorporation by reference of a certain publication listed in this final rule as of October 4, 2013.

ADDRESSES:

You may examine the AD docket on the Internet at http://www.regulations.gov or in person at the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. The NPRM published in the Federal Register on May 21, 2013 (78 FR 29666). The NPRM proposed to correct an unsafe condition for the specified products. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2012-0082, dated May 15, 2012 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Several wing tip brakes (WTB) have lost their braking function in service. Inspection by the manufacturer of these units revealed that the drive shaft was found free to rotate and the braking discs worn. Investigations are still on-going to determine the exact root cause.

The WTB is a Pressure-Off-Brake (POB) with a multi-plate friction device operated by a spring pack. In operation, the brakes are released by dual hydraulic pistons controlled by electro-hydraulic solenoid valves, energized by the Slat Flap Control Computers (SFCC). The purpose of the WTBs (4 per aeroplane) is to stop and hold the mechanical transmission in position in some specific failure cases. In such cases, the SFCCs de-energize their WTB solenoids, which remove the hydraulic pressure and lead to the application of the brakes.

This condition, if not detected and corrected, could, in some specific failure cases, result in loss of control of the aeroplane.

For the reasons described above, EASA issued AD 2010-0267 [(http://ad.easa.europa.eu/blob/easa_ad_2012_0082.pdf/AD_2010-0267)] to require a one-time Operational Test of the WTB/POB performance on the flap and slat systems to detect any dormant failure and, depending on findings, applicable corrective actions. This AD also required the reporting of findings, including none, to the TC holder.

Since issuance of EASA AD 2010-0267, additional occurrences have been reported. The results of the investigations revealed that WTB fitted with brake plates manufactured by JURID (Part Number (P/N) 1007A0000-03, P/N 1007A0000-04, or P/N 1007A0000-05) are more sensitive to wear than those manufactured by MIBA (P/N 1007A0000-06 or P/N 1007B0000-01).

For the reason described above, this AD retains the requirements of EASA AD 2010-0267, which is superseded, and requires:

• a repetitive Operational Test of the WTB/POB performance on the flap and slat systems, and

• embodiment of the terminating action which consists in the installation of WTB standard build on brake plates manufactured by MIBA.

You may obtain further information by examining the MCAI in the AD docket. Comments

We gave the public the opportunity to participate in developing this final rule. We received no comments on the NPRM (78 FR 29666, May 21, 2013) or on the determination of the cost to the public.

Conclusion

We reviewed the available data and determined that air safety and the public interest require adopting this final rule as proposed.

Costs of Compliance

We estimate that this final rule affects 400 products of U.S. registry. We estimate that it takes about 7 work-hours per product to comply with the basic requirements of this final rule. Required parts would cost up to $2,422 per product. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this final rule on U.S. operators to be up to $1,206,800, or up to $3,017 per product.

Paperwork Reduction Act

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591. ATTN: Information Collection Clearance Officer, AES-200.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this AD will not have federalism implications under Executive Order 13132. This final rule will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the MCAI, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section.

This AD was prompted by reports of wing tip brakes (WTBs) losing their braking function in service due to heavy wear on the brake discs. We are issuing this AD to detect and correct failure of the WTB and consequent loss of control of the airplane.

(f) Compliance

You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.

(g) Part Number Determination

Within 30 days after the effective date of this AD: Inspect to determine the part number (P/N) of the four WTBs of the flap and slat systems, in accordance with the Instructions of Airbus Alert Operators Transmission (AOT) A27L001-12, Revision 01, dated April 27, 2012. A review of the Airbus airplane inspection report (AIR) or airplane maintenance records is acceptable to identify the part number of the WTB installed, provided that part number can be conclusively determined from that review.

(h) Repetitive Operational Tests

For any WTB having P/N 1007A0000-03, P/N 1007A0000-04, or P/N 1007A0000-05, as determined by paragraph (g) of this AD: At the later of the times specified in paragraphs (h)(1) and (h)(2) of this AD, and thereafter at intervals not to exceed 1,000 flight hours, perform an operational test of the WTB on the affected flap and/or slat systems in accordance with the Instructions of Airbus AOT A27L001-12, Revision 01, dated April 27, 2012.

(1) Within 1,000 flight hours since the last accomplishment of A330/A340 Maintenance Review Board Report (MRBR) tasks 27.50.00/14 and 27.80.00/10, or since first flight of the airplane, whichever occurs later.

(2) Within 30 days after the effective date of this AD.

(i) Replacement of WTBs That Fail the Operational Test

If any WTB operational test fails, before further flight, replace the affected WTB with a serviceable WTB, in accordance with the Instructions of Airbus AOT A27L001-12, Revision 01, dated April 27, 2012. Installation of a WTB having P/N 1007A0000-03, P/N 1007A0000-04, or P/N 1007A0000-05, does not constitute terminating action for the repetitive tests required by paragraph (h) of this AD.

(j) Replacement of WTBs

Within 26 months after the effective date of this AD, replace each WTB having P/N 1007A0000-03, P/N 1007A0000-04, or P/N 1007A0000-05 with a WTB having P/N 1007A0000-06, in accordance with the Instructions of Airbus AOT A27L001-12, Revision 01, dated April 27, 2012. Accomplishing the replacement required by this paragraph constitutes terminating action for the repetitive operational tests required by paragraph (h) of this AD.

(k) Optional Installation

As an alternative to accomplishing the replacement required by paragraph (j) of this AD, installation of a WTB having P/N 1007B0000-01, in accordance with the Instructions of Airbus AOT A27L001-12, Revision 01, dated April 27, 2012, is acceptable for compliance with the requirements of paragraph (j) of this AD and constitutes terminating action for the repetitive operational tests required by paragraph (h) of this AD.

(l) Parts Installation Prohibition and Limitation

(1) For airplanes on which Airbus Modification 43512 has been embodied in production: As of the effective date of this AD, installing a WTB having P/N 1007A0000-03, P/N 1007A0000-04, or P/N 1007A0000-05 is not allowed.

(2) For airplanes on which Airbus Modification 43512 has not been embodied in production: Installing a WTB having P/N 1007A0000-03, P/N 1007A0000-04, or P/N 1007A0000-05 is allowed; provided that after its installation the operational test is performed before further flight, and passed successfully, in accordance with the Instructions of Airbus AOT A27L001-12, Revision 01, dated April 27, 2012.

(m) Credit for Previous Actions

This paragraph provides credit for actions required by paragraphs (g), (h), (i), (j), and (k) of this AD, if those actions were performed before the effective date of this AD using Airbus AOT A27L001-12, dated April 26, 2012, which is not incorporated by reference in this AD.

(n) Reporting to Airbus

Submit a report of the initial identification of the part numbers of the WTBs required by paragraph (g) of this AD, and a report of the findings of each operational test required by paragraph (h) of this AD (both positive and negative), to Airbus, Customer Services, Engineering and Technical Support, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex France, Attn: Daniel Lopez-Fernandez, SEEL6; fax: (+33) 5 61 93 04 52; email: daniel.lopez-fernandez@airbus.com; at the applicable time specified in paragraph (n)(1) or (n)(2) of this AD.

(1) If the action was done on or after the effective date of this AD: Submit the report within 90 days after accomplishing the action.

(2) If the action was done before the effective date of this AD: Submit the report within 90 days after the effective date of this AD.

(o) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 227-1138; fax (425) 227-1149. Information may be emailed to: 9-ANM-116-AMOC-REQUESTS@faa.gov. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

(3) Reporting Requirements: A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing Instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.

(p) Related Information

(1) Refer to Mandatory Continuing Airworthiness Information, European Aviation Safety Agency Airworthiness Directive 2012-0082, dated May 15, 2012, for related information, which can be found in the AD docket on the Internet at http://www.regulations.gov.

(2) Service information identified in this AD that is not incorporated by reference may be obtained at the addresses specified in paragraphs (q)(3) and (q)(4) of this AD.

(q) Material Incorporated by Reference

(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.

(4) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, Model CL-600-2D15 (Regional Jet Series 705) airplanes, Model CL-600-2D24 (Regional Jet Series 900) airplanes, and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. This AD was prompted by reports of erratic pitch movement and oscillatory behaviors of the elevator control system. This AD requires repetitive replacement of the bellcrank supports on the inner rear spar of the horizontal stabilizer with new, improved bellcrank supports. We are issuing this AD to prevent erratic pitch movement and transient accelerations, which could result in a significant pitch upset, and injuries to passengers and flightcrew.

DATES:

This final rule becomes effective October 4, 2013.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of October 4, 2013.

ADDRESSES:

You may examine the AD docket on the Internet at http://www.regulations.gov or in person at the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. The NPRM published in the Federal Register on May 31, 2013 (78 FR 32579). The NPRM proposed to correct an unsafe condition for the specified products.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2013-03, dated February 5, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

There have been several reported incidents of erratic pitch movements and oscillatory behaviors of the elevator control system. Investigation revealed that, the increase in the elevator breakout force induced by the introduction of a new elevator centering mechanism, in combination with the existing bracket assembly backlash and bearing friction of the bell crank support, could result in erratic pitch movement and oscillatory behavior of the elevator control system. This condition, if not corrected, could result in pitch upset of the aeroplane that generates transient accelerations. These accelerations could be high enough to injure aeroplane occupants that are not restrained in their seats.

This [TCCA] AD mandates the repetitive replacement of the bellcrank supports with a new bearing.

You may obtain further information by examining the MCAI in the AD docket.

Comments

We gave the public the opportunity to participate in developing this AD. We considered the comment received. The Airline Pilots Association International supported the NPRM (78 FR 32579, May 31, 2013).

Conclusion

We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting this final rule as proposed.

Costs of Compliance

We estimate that this AD affects 400 products of U.S. registry. We also estimate that it takes about 7 work-hours per product to comply with the basic requirements of this AD. Required parts would cost up to $2,422 per product. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be up to $1,206,800, or up to $3,017 per product.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the MCAI, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section.

This AD was prompted by reports of erratic pitch movements and oscillatory behaviors of the elevator control system. We are issuing this AD to prevent erratic pitch movement and transient accelerations, which could result in a significant pitch upset, and injuries to passengers and flightcrew.

(f) Compliance

You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.

(g) Repetitive Replacement of the Bellcrank Supports

For any airplane with bellcrank supports having part numbers AV670-23350-001 (left side) and AV670-23350-002 (right side), on the inner rear spar of the horizontal stabilizer: At the applicable time specified in paragraph (g)(1), (g)(2), (g)(3), or (g)(4) of this AD, replace the affected bellcrank supports with new bellcrank supports, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-27-064, dated December 11, 2012. Repeat the replacement thereafter at intervals not to exceed 20,000 flight hours.

(1) For airplanes that have, as of the effective date of this AD, accumulated 18,000 total flight hours or less: Replace before the accumulation of 24,600 total flight hours.

(2) For airplanes that have, as of the effective date of this AD, accumulated more than 18,000 total flight hours, but 23,400 total flight hours or less: Replace within 6,600 flight hours after the effective date of this AD.

(3) For airplanes that have, as of the effective date of this AD, accumulated more than 23,400 total flight hours, but 28,500 total flight hours or less: Replace before the accumulation of 30,000 total flight hours.

(4) For airplanes that have, as of the effective date of this AD, accumulated more than 28,500 total flight hours: Within 1,500 flight hours after the effective date of this AD.

(h) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, New York Aircraft Certification Office (ACO), ANE-170, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the ACO, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone 516-228-7300; fax 516-794-5531. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

(i) Related Information

(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2013-03, dated February 5, 2013, for related information, which can be found in the AD docket on the Internet at http://www.regulations.gov.

(j) Material Incorporated by Reference

(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.

(4) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

We are adopting a new airworthiness directive (AD) for all Airbus Model A330-200 Freighter series airplanes; Model A330-200 and -300 series airplanes, and Model A340-200 and -300 series airplanes. This AD was prompted by reports of cracked adjacent frame forks of a forward cargo door. This AD requires repetitive detailed inspections for cracks and sheared, loose, or missing rivets of the forward cargo door and, for certain airplanes, of the aft cargo door, and repair if necessary. We are issuing this AD to detect and correct cracked or ruptured cargo door frames, which could result in reduced structural integrity of the forward or aft cargo door.

DATES:

This AD becomes effective October 4, 2013.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 4, 2013.

ADDRESSES:

You may examine the AD docket on the Internet at http://www.regulations.gov or in person at the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. The NPRM was published in the Federal Register on May 20, 2013 (78 FR 29261). The NPRM proposed to correct an unsafe condition for the specified products. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2012-0274, dated December 21, 2012 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

One A330 operator recently reported a case where two adjacent frame (FR) forks of a forward cargo door were found cracked. FR20B was found cracked through, FR21 was found cracked half through. At the time of the findings, the affected aeroplane had accumulated around 21 000 flight cycles (FC) and it had already been inspected in accordance with EASA AD 2011-0007R1 [(http://ad.easa.europa.eu/blob/easa_ad_2011_0007_R1.pdf/AD_2011-0007R1_1)] [which corresponds to FAA AD 2012-12-12, Amendment 39-17092 (77 FR 37797, June 25, 2012)] and ALI [airworthiness limitation instructions] Task 523106-01-1. However, during those inspections, the forward cargo door handle access panel is not required to be removed, which explains why the cracks at these two internal frame locations were not detected.

After further analysis, it was determined that, in case of cracked or ruptured (forward or aft) cargo door frame, the loads will be transferred to the remaining structural elements. However, the second load path is able to sustain the loads for a limited number of flight cycles only.

This condition, if not detected and corrected, could lead to rupture of two vertical frames, resulting in reduced structural integrity of the forward or aft cargo door.

For the reasons described above, this [EASA] AD requires repetitive detailed visual inspections of aft cargo door at FR60 and FR60A [for certain airplanes] and forward cargo door at FR21 and FR20B [for all airplanes], where the cargo door handle access panels are located, as follow:

—Outer skin rivets for sheared, loose or missing rivets at frame fork ends,—whole inner forks for cracks and for sheared, loose or missing rivets at frame web and flange after removal of handle access panels, andthe accomplishment of the applicable corrective actions [which include repair, in accordance with a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA.]

Note: Accomplishment of the above inspections does not cancel accomplishment of the inspections as required by EASA [AD] 2011-0007R1, nor accomplishment of those in accordance with ALI Task 523106-01-1.

You may obtain further information by examining the MCAI in the AD docket.Comments

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (78 FR 29261, May 20, 2013) or on the determination of the cost to the public.

Conclusion

We reviewed the available data and determined that air safety and the public interest require adopting this AD as proposed-except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (78 FR 29261, May 20, 2013) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (78 FR 29261, May 20, 2013).

Costs of Compliance

We estimate that this AD affects 66 airplanes of U.S. registry. We also estimate that it takes 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost on U.S. operators to be $5,610, or $85 per product.

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the MCAI, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section.

This AD was prompted by reports of cracked adjacent frame forks of a forward cargo door. We are issuing this AD to detect and correct cracked or ruptured cargo door frames, which could result in reduced structural integrity of the forward or aft cargo door.

(f) Compliance

You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.

(g) Inspections for Certain Airplanes

For Model A330-200, -200 Freighter, and -300 airplanes up to MSN 0162 inclusive, except those on which Airbus Service Bulletin A330-52-3044 has been embodied in service; and for Model A340-200 and -300 airplanes up to MSN 0164 inclusive, except those on which Airbus Service Bulletin A340-52-4054 has been embodied in service: Before the accumulation of 15,800 total flight cycles since the airplane's first flight or within 100 flight cycles after the effective date of this AD, whichever occurs later, do a detailed inspection of the outer skin rivets at the frame fork end of frame (FR)60 and FR60A of the aft cargo door for sheared, loose, or missing rivets; and do a detailed inspection of the whole FR60 and FR60A forks for cracking and for sheared, loose, or missing rivets at the frame web and flanges; in accordance with Airbus Alert Operator Transmission (AOT) A330-A52L001-12, dated December 3, 2012; or Airbus AOT A340-A52L002-12, dated December 3, 2012; as applicable. Repeat the inspections thereafter at intervals not to exceed 400 flight cycles.

(h) Inspections for All Airplanes

Within the applicable compliance time specified in paragraph (h)(1) or (h)(2) of this AD, do a detailed inspection of outer skin rivets at the frame fork end of FR21 and FR20B of the forward cargo door for sheared, loose, or missing rivets; and do a detailed inspection of the whole FR21 and FR20B forks for cracks and for sheared, loose, or missing rivets at the frame web and flanges; in accordance with Airbus AOT A330-A52L003-12, dated December 3, 2012; or Airbus AOT A340-A52L004-12, dated December 3, 2012; as applicable. Repeat this inspection thereafter at intervals not to exceed 800 flight cycles.

(1) For airplanes having less than 18,400 total flight cycles since the airplane's first flight as of the effective date of this AD: Before the accumulation of 10,600 total flight cycles since the airplane's first flight, or within 100 flight cycles after the effective date of this AD, whichever occurs later.

(2) For airplanes having 18,400 total flight cycles or more since the airplane's first flight as of the effective date of this AD: Within 50 flight cycles after the effective date of this AD.

(i) Repair

If any cracking, or sheared, loose, or missing rivet is found during any inspection required by this AD, before further flight, repair using a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA) (or its delegated agent).

(j) Non-Terminating Action

Doing the repair required by paragraph (i) of this AD is not terminating action for the repetitive inspections required by paragraphs (g) and (h) of this AD for that cargo door, unless the repair instruction specifically states it is terminating action.

(k) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 227-1138; fax (425) 227-1149. Information may be emailed to: 9-ANM-116-AMOC-REQUESTS@faa.gov. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

(l) Related Information

Refer to Mandatory Continuing Airworthiness Information EASA Airworthiness Directive 2012-0274, dated December 21, 2012, for related information, which can be found in the AD docket on the Internet at http://www.regulations.gov.

(m) Material Incorporated by Reference

(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.

(i) Airbus Alert Operator Transmission A330-A52L001-12, dated December 3, 2012. The first page of this document contains the document number and date; no other pages contain this information.

(ii) Airbus Alert Operator Transmission A330-A52L003-12, dated December 3, 2012. The first page of this document contains the document number and date; no other pages contain this information.

(iii) Airbus Alert Operator Transmission A340-A52L002-12, dated December 3, 2012. The first page of this document contains the document number and date; no other pages contain this information.

(iv) Airbus Alert Operator Transmission A340-A52L004-12, dated December 3, 2012. The first page of this document contains the document number and date; no other pages contain this information.

(4) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

The Federal Trade Commission (the “Commission” or “FTC”) is amending its Telemarketing Sales Rule (“TSR”) by updating the fees charged to entities accessing the National Do Not Call Registry (the “Registry”) as required by the Do-Not-Call Registry Fee Extension Act of 2007.

DATES:

Effective Date: The revised fees will become effective October 1, 2013.

ADDRESSES:

Requests for copies of this document should be sent to: Public Reference Branch, Federal Trade Commission, Room 130, 600 Pennsylvania Avenue NW., Washington, DC 20580. Copies of this document are also available on the Internet at the Commission's Web site: http://www.ftc.gov.

To comply with the Do-Not-Call Registry Fee Extension Act of 2007 (Pub. L. 110-188, 122 Stat. 635) (“Act”), the Commission is amending the TSR by updating the fees entities are charged for accessing the Registry as follows: the revised rule increases the annual fee for access to the Registry for each area code of data from $58 to $59 per area code; increases the fee per area code of data during the second six months of an entity's annual subscription period from $29 to $30; and increases the maximum amount that will be charged to any single entity for accessing area codes of data from $15,962 to $16,228.

These increases are in accordance with the Act, which specifies that beginning after fiscal year 2009, the dollar amounts charged shall be increased by an amount equal to the amounts specified in the Act, multiplied by the percentage (if any) by which the average of the monthly consumer price index (for all urban consumers published by the Department of Labor) (“CPI”) for the most recently ended 12-month period ending on June 30 exceeds the CPI for the 12-month period ending June 30, 2008. The Act also states that any increase shall be rounded to the nearest dollar and that there shall be no increase in the dollar amounts if the change in the CPI is less than one percent. For fiscal year 2009, the Act specified that the original annual fee for access to the Registry for each area code of data was $54 per area code, or $27 per area code of data during the second six months of an entity's annual subscription period, and that the maximum amount that would be charged to any single entity for accessing area codes of data would be $14,850.

The determination whether a fee change is required and the amount of the fee change involves a two-step process. First, to determine whether a fee change is required, we measure the change in the CPI from the time of the previous increase in fees. There was an increase in the fees for fiscal year 2013. Accordingly, we calculated the change in the CPI since last year, and the increase was 1.66 percent. Because this change is over the one percent threshold, the fees will change for fiscal year 2014.

Second, to determine how much the fees should increase this fiscal year, we use the calculation specified by the Act set forth above, the percentage change in the baseline CPI applied to the original fees for fiscal year 2009. The average value of the CPI for July 1, 2007 to June 30, 2008 was 211.702; the average value for July 1, 2012 to June 30, 2013 was 231.352, an increase of 9.28 percent. Applying the 9.28 percent increase to the base amount from fiscal year 2009, leads to an increase from $58 to $59 in the fee from last year for access to a single area code of data for a full year for fiscal year 2014. The actual amount is $59.01, but when rounded, pursuant to the Act, the amount is $59. The fee for accessing an additional area code for a half year increases to $29.51 (rounded to $30). The maximum amount charged increases to $16,228.08 (rounded to $16,228).

The revisions to the Fee Rule are technical in nature and merely incorporate statutory changes to the TSR. These statutory changes have been adopted without change or interpretation, making public comment unnecessary. Therefore, the Commission has determined that the notice and comment requirements of the Administrative Procedure Act do not apply. See 5 U.S.C. 553(b). For this reason, the requirements of the Regulatory Flexibility Act also do not apply. See 5 U.S.C. 603, 604. Pursuant to the Paperwork Reduction Act, 44 U.S.C. 3501-3521, the Office of Management and Budget (“OMB”) approved the information collection requirements in the Amended TSR and assigned the following existing OMB Control Number: 3084-0097. The amendments outlined in this Final Rule pertain only to the fee provision (§ 310.8) of the Amended TSR and will not establish or alter any record keeping, reporting, or third-party disclosure requirements elsewhere in the Amended TSR.

Accordingly, the Federal Trade Commission amends part 310 of title 16 of the Code of Federal Regulations as follows:

PART 310—TELEMARKETING SALES RULE 1. The authority citation for part 310 continues to read as follows: Authority:

15 U.S.C. 6101-6108; 15 U.S.C. 6151-6155.

2. Revise § 310.8(c) and (d) to read as follows: § 310.8 Fee for access to the National Do Not Call Registry.

(c) The annual fee, which must be paid by any person prior to obtaining access to the National Do Not Call Registry, is $59 for each area code of data accessed, up to a maximum of $16,228; provided, however, that there shall be no charge to any person for accessing the first five area codes of data, and provided further, that there shall be no charge to any person engaging in or causing others to engage in outbound telephone calls to consumers and who is accessing area codes of data in the National Do Not Call Registry if the person is permitted to access, but is not required to access, the National Do Not Call Registry under this Rule, 47 CFR 64.1200, or any other Federal regulation or law. Any person accessing the National Do Not Call Registry may not participate in any arrangement to share the cost of accessing the registry, including any arrangement with any telemarketer or service provider to divide the costs to access the registry among various clients of that telemarketer or service provider.

(d) Each person who pays, either directly or through another person, the annual fee set forth in § 310.8(c), each person excepted under § 310.8(c) from paying the annual fee, and each person excepted from paying an annual fee under § 310.4(b)(1)(iii)(B), will be provided a unique account number that will allow that person to access the registry data for the selected area codes at any time for the twelve month period beginning on the first day of the month in which the person paid the fee (“the annual period”). To obtain access to additional area codes of data during the first six months of the annual period, each person required to pay the fee under § 310.8(c) must first pay $59 for each additional area code of data not initially selected. To obtain access to additional area codes of data during the second six months of the annual period, each person required to pay the fee under § 310.8(c) must first pay $30 for each additional area code of data not initially selected. The payment of the additional fee will permit the person to access the additional area codes of data for the remainder of the annual period.

The Department of Labor (Department or we/us) is delaying indefinitely the effective date of the Wage Methodology for the Temporary Non-agricultural Employment H-2B Program final rule (2011 Wage Rule), in order to comply with recurrent legislation that prohibits us from using any funds to implement it, and to permit time for consideration of public comments sought in conjunction with an interim final rule published April 24, 2013, 78 FR 24047. The 2011 Wage Rule revised the methodology by which the Department calculates the prevailing wages to be paid to H-2B workers and United States workers recruited in connection with a temporary labor certification for use in petitioning the Department of Homeland Security to employ a nonimmigrant worker in H-2B status. The 2011 Wage Rule was originally scheduled to become effective on January 1, 2012, and the effective date has been extended a number of times, most recently to October 1, 2013. We are now delaying the effective date of the 2011 Wage Rule indefinitely. This rule does not affect the Interim Final Rule, 78 FR 24047, published on April 24, 2013, establishing the current prevailing wage methodology for the H-2B program; that rule remains in effect.

DATES:

The effective date of the rule amending 20 CFR part 655, published at 76 FR 3452 (January 19, 2011) (referred to herein as the 2011 Wage Rule), originally effective January 1, 2012, and which was previously made effective September 30, 2011, at 76 FR 45667 (August 1, 2011); and delayed to November 30, 2011, at 76 FR 59896 (September 28, 2011); to January 1, 2012, at 76 FR 73508 (November 29, 2011); to October 1, 2012, at 76 FR 82115 (December 30, 2011); to March 27, 2013, at 77 FR 60040 (October 2, 2012); and to October 1, 2013, at 78 FR 19098 (March 29, 2013), is delayed indefinitely, effective on September 30, 2013. The Department will publish a later document in the Federal Register establishing a new effective date in the event of implementation of the 2011 Wage Rule.

The Department of Labor published a final rule, Wage Methodology for the Temporary Non-agricultural Employment H-2B Program, on January 19, 2011. See 76 FR 3452 (the 2011 Wage Rule). The 2011 Wage Rule revised the methodology by which we calculate the prevailing wages to be paid to H-2B workers and United States (U.S.) workers recruited in connection with a temporary labor certification for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2B status. We originally set the effective date of the 2011 Wage Rule for January 1, 2012. However, as a result of litigation and following notice-and-comment rulemaking, we issued a final rule, 76 FR 45667 (Aug. 1, 2011), revising the effective date of the 2011 Wage Rule to September 30, 2011, and a second final rule, 76 FR 59896 (Sept. 28, 2011), further revising the effective date of the 2011 Wage Rule to November 30, 2011.

Thereafter, we delayed the effective date of the 2011 Wage Rule until January 1, 2012 in light of the enactment on November 18, 2011 of the Consolidated and Further Continuing Appropriations Act, 2012, which provided that “[n]one of the funds made available by this or any other Act for fiscal year 2012 may be used to implement, administer, or enforce, prior to January 1, 2012 the [Wage Rule].” Public Law No. 112-55, 125 Stat. 552, Div. B, Title V, sec. 546 (Nov. 18, 2011) (the November 2011 Appropriations Act). In delaying the 2011 Wage Rule's effective date at that time, the Department stated that although the November 2011 Appropriations Act “prevent[ed] the expenditure of funds to implement, administer, or enforce the [2011] Wage Rule before January 1, 2012, it [did] not prohibit the [2011] Wage Rule from going into effect, which [was] scheduled to occur on November 30, 2011.” 76 FR 73508, 73509 (Nov. 29, 2011). We explained that “when the [2011] Wage Rule goes into effect, it will supersede and make null the prevailing wage provisions at 20 CFR 655.10(b) of the Department's existing H-2B regulations, which were promulgated under Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes; Final Rule, 73 FR 78020, Dec. 19, 2008 (the H-2B 2008 Rule).” Id. Accordingly, we determined that it was necessary in light of the November 2011 Appropriations Act to delay the effective date of the 2011 Wage Rule to avoid the replacement of the wage provisions of the H-2B 2008 Rule with a new rule that we lacked appropriated funds to implement. Such an occurrence would have rendered the H-2B program inoperable because, as discussed in the NPRM, at 78 FR 44055, the issuance of a prevailing wage determination is a condition precedent to approving an employer's request for an H-2B labor certification. See 20 CFR 655.10. As a result, the Department issued a final rule, 76 FR 73508, which delayed the effective date of the 2011 Wage Rule until January 1, 2012.

Subsequent appropriations legislation 1 containing the same restriction prohibiting the Department's use of appropriated funds to implement, administer, or enforce the 2011 Wage Rule necessitated subsequent extensions of the effective date of that rule. See 76 FR 82115 (Dec. 30, 2011) (extending the effective date to October 1, 2012); 77 FR 60040 (Oct. 2, 2012) (extending the effective date to March 27, 2013); 78 FR 19098 (Mar. 29, 2013) (extending the effective date to October 1, 2013). In light of the continued prohibitions on the expenditure of the Department's appropriated funds to implement, administer, or enforce the 2011 Wage Rule, the Department proposed in the July 23, 2013 NPRM to delay indefinitely the effective date of the 2011 Wage Rule until such time as the rule can be implemented.

Additionally, the Department, together with DHS (the Departments),2 recently promulgated an interim final rule (IFR), 78 FR 24047, establishing a new wage methodology. This action was taken in direct response to Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Solis,—F. Supp. 2d—, 2013 WL 1163426 (E.D. Pa. Mar. 21, 2013), in which the district court vacated a provision of the H-2B 2008 rule, 20 CFR 655.10(b)(2). That provision required that prevailing wages based on the Occupational Employment Statistics (OES) survey contain tiers that are commensurate with the skill required for the job; the Department accordingly divided the OES wage applicable to the occupation in question into four tiers of wages to correspond to skill levels. The court vacated 20 CFR 655.10(b)(2), which was the basis for the four-tiered wage, and remanded the matter to the Department, ordering the Department to come into compliance with the court's order within 30 days.

2 The Department of Labor and DHS issued the IFR jointly to dispel questions about the respective roles of the two agencies and the validity of the Department's regulations as an appropriate way to implement the interagency consultation specified in section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1). See Bayou Lawn & Landscape Servs. v. Sec'y of Labor, 713 F.3d 1080 (11th Cir. 2013) (holding that the Department of Labor lacks independent rulemaking authority under the INA to issue legislative regulations implementing its role in the H-2B program). But see La. Forestry Ass'n v. Solis, 889 F. Supp. 2d 711 (E.D. Pa. 2012) (rejecting claim that the Department of Labor lacks authority under the INA to administer the H-2B program through legislative rules), appeal pending, No. 12-4030 (3d Cir.). Due to these inconsistent court rulings about the Department's authority to issue independent legislative rules, the Department and DHS together issued the IFR revising the prevailing wage methodology in the H-2B program.

In response to CATA v. Solis, the Departments issued the IFR on April 24, 2013. See 78 FR 24047. The Departments struck the phrase, “at the skill level,” from 20 CFR 655.10(b)(2), thus requiring prevailing wage determinations issued using the OES survey to be based on the mean wage for the occupation in the area of intended employment without tiers or skill levels. See id. at 24053. That revision became effective on April 24, 2013, the date of publication. The Departments requested comments on all aspects of the prevailing wage provisions of 20 CFR 655.10(b), including, among other things, whether the OES mean is the appropriate basis for determining the prevailing wage; whether wages based on the Davis-Bacon Act (DBA), 40 U.S.C. 276a et seq., 29 CFR part 1, or the McNamara-O'Hara Service Contract Act (SCA), 41 U.S.C. 351 et seq., should be used to determine the prevailing wage, and if so to what extent; and whether to permit the continued use of employer-submitted surveys and ways to strengthen their methodology, if permitted. The comment period closed on June 10, 2013, and the Departments are in the process of reviewing those comments and determining whether further revision to 20 CFR 655.10(b) is warranted in light of public comment.

Because of the confluence of the recurrent Congressional prohibition against implementation of the 2011 Wage Rule, which we anticipate will continue, and our current review and consideration of comments associated with the IFR, which revised the wage provision of the H-2B regulations that was also the subject of the 2011 Wage Rule, the Department proposed the indefinite delay of the effective date of the 2011 Wage Rule on July 23, 2013. 78 FR 44054. We accepted comments from the public on the proposed indefinite delay through August 9, 2013.

We received 36 comments on the proposed rule. We received three comments that support the delay of the effective date of the 2011 Wage Rule. Two commenters submitted joint comments on the IFR without addressing the proposed extension of the 2011 Wage Rule. The remaining commenters, many of whom submitted identical or nearly identical comments, summarily suggested that the Department reconsider or delay the implementation of the “new rule” or the “new wage methodology.” We interpret these comments to refer to the Department's IFR issued on April 24, 2013. As noted above, the Departments are considering comments submitted in response to the IFR and will determine, in that separate rulemaking proceeding, whether further changes are necessary in light of those comments. However, comments on the IFR are beyond the scope of this rulemaking, which only addresses the effective date of the 2011 Wage Rule. As a result, we have not considered comments about the IFR in this final rule.

One commenter challenged generally the merits of the 2011 Wage Rule and the IFR. As noted above, the relative merits of the IFR were not raised in this proposed rule, which was limited to the proposed indefinite delay of the effective date of the 2011 Wage Rule. Comments about the IFR are therefore beyond the scope of this rulemaking, as are the relative merits of the 2011 Wage Rule. The same commenter also challenged our authority to issue rules for the H-2B program, asserting, in part, that the issuance of the proposed extension of the 2011 Wage Rule violates “the congressional defunding legislation,” which, in its view, requires the rescission of the 2011 Wage Rule and precludes its indefinite delay. This commenter also asserted that the APA does not allow an agency to place a regulation “on a shelf forever” and that the Department has acted improperly by determining that it intends to issue—without public comment—the 2011 Wage Rule upon expiration of “the defunding legislation.”

As explained in the proposed rule, we have complied with the restrictions imposed on our use of appropriated funds to implement, administer, or enforce the 2011 Wage Rule. Contrary to the commenter's view, the appropriations legislation, by its terms, is only applicable for a specified period of time and does not supplant the substantive provisions of the 2011 Wage Rule. Moreover, the proposal to indefinitely delay the effective date of the rule is consistent with the conditions imposed by Congress. As noted in the proposed rule, we have promulgated a series of notices delaying the effective date of the 2011 Wage Rule. By doing so, we have clarified the status of the rule for the public, thereby eliminating any uncertainty or confusion as to its status.

To the extent that the commenter is challenging our authority to issue any regulations in the H-2B program, we disagree for the reasons stated in the 2011 Wage Rule (76 FR at 3452-3453) and the IFR (78 FR at 24049-24051). As to the commenter's additional assertions, we have complied fully with the Administrative Procedure Act (APA) in proposing and adopting as a final rule the indefinite delay of the 2011 Wage rule. Our future actions likewise will be guided by the APA and other statutory requirements. The 2011 Wage Rule has already been the subject of extensive public comment to which we responded in detail in the preamble to the 2011 Wage Rule. The commenter provides no authority, and we are aware of none, that would require us to reopen the rule for comment simply because the effective date of the rule has been changed.

In sum, after considering all the comments, the Department has decided to indefinitely delay the 2011 Wage Rule for the reasons stated in the proposal. As noted in the proposed rule, if the 2011 Wage Rule were to become effective, it would supplant the revisions made to 20 CFR 655.10(b) in the IFR, which were necessary in light of the court's order in CATA v. Solis. In that event, we would likely continue to be unable to implement the 2011 Wage Rule, based on the continuation of the Congressional prohibition on its implementation. However, if Congress lifts the prohibition against implementation of the 2011 Wage Rule, the Department would need time to assess the current regulatory framework, to consider any changed circumstances, novel concerns or new information received, and to minimize disruptions. This rule preserves our ability to do so.

Until such time as Congress no longer prohibits the Department from implementing the 2011 Wage Rule, the effective date of the 2011 Wage Rule is delayed indefinitely. If Congress no longer prohibits implementation of the 2011 Wage Rule, the Department will publish a document in the Federal Register within 45 days of that event apprising the public of the status of 20 CFR 655.10 and the effective date of the 2011 Wage Rule. This rule does not affect the Interim Final Rule, 78 FR 24047, published on April 24, 2013, establishing the current prevailing wage methodology for the H-2B program; that rule remains in effect.

The Office of Workers' Compensation Programs (OWCP) published a direct final rule in the Federal Register on June 13, 2013, updating existing film-radiograph standards and providing parallel standards for submission of digital radiographs in connection with claims filed under the Black Lung Benefits Act. The comment period closed on August 12, 2013. OWCP is withdrawing the direct final rule because the agency received significant adverse comment.

DATES:

Effective August 30, 2013, the direct final rule published on June 13, 2013, (78 FR 35549) is withdrawn.

On June 13, 2013, OWCP published the direct final rule, Black Lung Benefits Act: Standards for Chest Radiographs (78 FR 35549), to update existing film-radiograph standards and provide parallel standards for digital radiographs submitted in Black Lung Benefits Act claims. OWCP stated that the rule would go into effect unless the agency received significant adverse comment; in that event, OWCP stated that it would withdraw the direct final rule and proceed on the companion proposed rule also published in the Federal Register on June 13, 2013 (78 FR 35575). Because OWCP has received significant adverse comment, it is withdrawing the direct final rule with this notice. OWCP will address all comments in its final action on the proposed rule. As stated in both the direct final rule and companion proposed rule, OWCP will not institute a second comment period.

This document contains final regulations on the requirement to maintain minimum essential coverage enacted by the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, as amended by the TRICARE Affirmation Act and Public Law 111-173. These final regulations provide guidance to individual taxpayers on the liability under section 5000A of the Internal Revenue Code for the shared responsibility payment for not maintaining minimum essential coverage and largely finalize the rules in the notice of proposed rulemaking published in the Federal Register on February 1, 2013.

DATES:

Effective date: These regulations are effective on August 30, 2013.

Applicability date: For date of applicability, see § 1.5000A-5(c).

FOR FURTHER INFORMATION CONTACT:

Sue-Jean Kim or John B. Lovelace at (202) 622-4960 (not a toll-free number).

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

The collection of information contained in these regulations has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork and Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-0074. The collection of information in these final regulations is in § 1.5000A-3 and § 1.5000A-4. The information is necessary to determine whether the shared responsibility payment provision applies to a taxpayer, and, if it applies, the amount of the penalty. The likely respondents are individuals required to file Federal income tax returns under section 6012(a)(1).

Estimated total annual reporting burden: 7,500,000 hours.

Estimated annual burden hours per respondent varies from .1 to .5 hours, depending on individual circumstances, with an estimated average of .21 hours.

Estimated number of respondents: 36,000,000.

Estimated frequency of responses: Annually.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by the Office of Management and Budget.

Book or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by section 6103.

Background

This document amends the Income Tax Regulations (26 CFR part 1) by adding final regulations under section 5000A on the individual shared responsibility provision. Section 5000A was enacted by the Patient Protection and Affordable Care Act, Public Law 111-148 (124 Stat. 119 (2010)), and the Health Care and Education Reconciliation Act of 2010, Public Law 111-152 (124 Stat. 1029 (2010)) (collectively, the Affordable Care Act). On February 1, 2013, a notice of proposed rulemaking (REG-148500-12) was published in the Federal Register (78 FR 7314).

Written comments responding to the notice of proposed rulemaking of February 1, 2013, were received. The comments are available for public inspection at www.regulations.gov or on request. A public hearing was held on May 29, 2013. After considering all the comments, the proposed regulations are adopted as revised by this Treasury decision. The comments and revisions are discussed in the preamble.

In related rulemaking, on July 1, 2013, the Department of Health and Human Services (HHS) promulgated final regulations implementing certain functions of the Affordable Insurance Exchanges (Exchanges) to determine eligibility for and grant certain exemptions from the shared responsibility payment under section 5000A, and implementing the responsibilities of the Secretary of HHS, in coordination with the Secretary of the Treasury, to designate other health benefits coverage as minimum essential coverage under section 5000A(f)(1)(E). Patient Protection and Affordable Care Act: Exchange Functions: Eligibility for Exemptions; Miscellaneous Minimum Essential Coverage Provisions, 78 FR 39494 (codified at 45 CFR parts 155 and 156) (the HHS MEC regulations). The HHS MEC regulations provide, among other things, eligibility standards for the hardship exemption, setting forth both general and specific descriptions of the circumstances in which an Exchange will grant a hardship exemption certification as well as those in which a hardship exemption may be claimed on a Federal income tax return. The HHS MEC regulations also designate certain coverage as minimum essential coverage and outline substantive and procedural requirements for other types of coverage to be recognized as minimum essential coverage.

Summary of Comments and Explanation of RevisionsI. Maintenance of Minimum Essential CoverageA. Coverage for a Month

The proposed regulations provide that, for any calendar month, an individual has minimum essential coverage if the individual is enrolled in and entitled to receive benefits under a program or plan that is minimum essential coverage for at least one day during the month.

A commentator recommended that an individual be covered for a month if the individual is enrolled in and entitled to receive benefits under a plan or program identified as minimum essential coverage for a majority of the days in the month. The commentator asserted that allowing one day of enrollment in a month to satisfy the coverage requirement would permit individuals to obtain minimum essential coverage for only one day and then forgo it for the rest of the month without any adverse consequence under section 5000A.

The Treasury Department and the IRS considered a rule requiring coverage for a majority of days in a month but chose the one-day rule because it provides administrative convenience for both taxpayers and the IRS. Without the one-day rule, taxpayers and the IRS would need to determine the number of days each person in a shared responsibility family is covered in each month of a taxable year. Accordingly, the final regulations do not adopt this recommendation. The Treasury Department and the IRS will reconsider this rule if future developments indicate that the rule is being abused, for example, if individuals obtain coverage for a single day in a month over the course of several months in a year.

A commentator requested that the final regulations provide that an individual who has submitted an application for Medicaid but is awaiting approval for enrollment have minimum essential coverage while the application is pending approval. In general, Medicaid coverage is granted retroactively to the date the application is filed. Section 5000A(a) requires that an individual have minimum essential coverage for a month. If retroactive coverage is granted, an applicant has minimum essential coverage. If the application is denied, the applicant does not have minimum essential coverage. Accordingly, the final regulations do not adopt this recommendation. However, an individual without coverage may be eligible for an exemption, such as a short coverage gap exemption. See § 1.5000A-3 and 45 CFR 155.605.

In general, section 151 allows individual taxpayers a deduction for personal exemptions for the taxpayer, the taxpayer's spouse, and any dependents (as defined in section 152) of the taxpayer for the taxable year. Section 152 defines dependent to include a taxpayer's qualifying children and qualifying relatives. Although a section 151 deduction is allowable to a taxpayer for the taxpayer's dependents (as defined in section 152), a deduction is allowed to a taxpayer under section 151 only if the taxpayer properly claims the dependent. Consistent with section 5000A(b)(3), the proposed regulations provide that a taxpayer is liable for the shared responsibility payment imposed for any individual for a month in a taxable year for which the individual is the taxpayer's dependent (as defined in section 152) for that taxable year. Whether the taxpayer actually claims the individual as a dependent for the taxable year does not affect the taxpayer's liability for the shared responsibility payment for the individual.

Several commentators recommended modifications to the section 5000A rule addressing liability for dependents. Some commentators recommended that a taxpayer's liability for the shared responsibility payment be limited to individuals eligible for the same minimum essential coverage for which the taxpayer is eligible. The commentators stated that many taxpayers are unable to enroll their qualifying children in their employer-provided plans. Other commentators recommended that a taxpayer's liability under section 5000A extend solely to those dependents who meet the requirements to be a qualifying child under section 152, so that a taxpayer's qualifying relatives would be disregarded. In addition, commentators requested that section 5000A liability extend only to those dependents who are actually claimed by the taxpayer. They stated that the complexity in identifying a potential dependent before the taxable year begins, particularly a qualifying relative, would prevent them from making informed coverage decisions. The commentators claimed that, unless the rule is revised, those taxpayers may unexpectedly be liable for shared responsibility payments for dependents for whom a deduction under section 151 is not claimed.

Section 5000A(b)(3) provides that a taxpayer is liable for the shared responsibility payment for an individual without minimum essential coverage if the individual is the taxpayer's dependent as defined in section 152. While the definition of family size in section 5000A(c)(4)(A) refers to dependents for whom a taxpayer claims a deduction under section 151, section 5000A(b)(3) refers to section 152, and section 152 defines dependent based on status as a qualifying child or qualifying relative. Accordingly, the final regulations retain the rule imposing liability on the taxpayer who may claim an individual as a dependent.

Other commentators recommended that a non-custodial parent who must provide the health care of a child under a separation agreement, divorce decree, court order, or other similar legal obligation and who fails to provide that health care be liable for the shared responsibility payment attributable to that child even if the child is the custodial parent's dependent under section 152.

Section 5000A places liability for a dependent's lack of minimum essential coverage on the taxpayer who may claim the individual as a dependent. Section 5000A does not provide that this liability may be assigned to another taxpayer, even if the other taxpayer has a legal obligation to provide the child's health care. Accordingly, the final regulations do not adopt this recommendation. However, HHS has addressed the situation described in the comments in recently issued guidance, permitting Exchanges to grant a hardship exemption under 45 CFR 155.605(g)(1) to the custodial parent for a child in this situation if the child is ineligible for coverage under Medicaid or the Children's Health Insurance Program (CHIP). See HHS Center for Consumer Information & Insurance Oversight, Guidance on Hardship Exemption Criteria and Special Enrollment Periods (June 26, 2013).

2. Special Rule for Adopted Children

The proposed regulations provide special rules for determining liability for the shared responsibility payment attributable to children adopted or placed in foster care during a taxable year. If a taxpayer legally adopts a child and is entitled to claim the child as a dependent for the taxable year when the adoption occurs, the taxpayer is not liable for a shared responsibility payment attributable to the child for the month of the adoption and any preceding month. Conversely, if a taxpayer who is entitled to claim a child as a dependent for the taxable year places the child for adoption during the year, the taxpayer is not liable for a shared responsibility payment attributable to the child for the month of the adoption and any following month.

Similar to the comment on a custodial parent's liability, commentators recommended that a taxpayer's liability for shared responsibility payment for an adopted child be based on the state law assigning responsibility for the child's health care, not when a child is adopted or placed for foster care.

As explained previously in section I.B.1. of this preamble, section 5000A(b)(3) provides that a taxpayer is liable for the shared responsibility payment for an individual without minimum essential coverage if the individual is the taxpayer's dependent as defined in section 152. Determining when a taxpayer is liable for an adopted child's health care under numerous and varying state laws would introduce considerable administrative difficulty and uncertainty into the implementation and administration of section 5000A. Accordingly, the final regulations do not modify the rule for determining liability for the shared responsibility payment attributable to children adopted or placed in foster care during a taxable year.

C. Definitions of Terms1. Insurance-related Terms

Section 5000A(f)(5) provides that any term used in section 5000A that is also used in Title I of the Affordable Care Act has the same meaning as when used in that Title. To provide additional guidance and clarity, the final regulations specifically identify the terms used in section 5000A that also are used in Title I of the Affordable Care Act. The additional terms defined include health insurance coverage, individual health insurance coverage, individual market, and state.

2. Household Income

Section 5000A(c)(4)(B) provides that the term household income means the modified adjusted gross income of the taxpayer plus the modified adjusted gross income of all members of the taxpayer's family required to file a tax return under section 1 for the taxable year. The proposed regulations provide that the determination of whether a family member is required to file a return is made without regard to section 1(g)(7). Under section 1(g)(7), a parent may, if certain requirements are met, elect to include in the parent's gross income, the gross income of his or her child. If the parent makes the election, the child is treated as having no gross income for the taxable year. The final regulations remove “without regard to section 1(g)(7).” The proposed regulations' use of the phrase “without regard to section 1(g)(7)” implies that the child's gross income is included in both the parent's adjusted gross income and the child's adjusted gross income in determining household income. The final regulations remove the phrase to clarify that if a parent makes an election under section 1(g)(7), household income includes the child's gross income included on the parent's return and the child is treated as having no gross income.

The proposed regulations exclude Medicaid coverage for pregnant women under section 1902(a)(10)(A)(i)(IV) and (a)(10)(A)(ii)(IX) of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)(i)(IV), (a)(10)(A)(ii)(IX)) (“pregnancy-related Medicaid”) from government-sponsored programs constituting minimum essential coverage. Some commentators commended this treatment of pregnancy-related Medicaid. Other commentators expressed concern that women who have pregnancy-related Medicaid and who do not have any form of minimum essential coverage would, under the proposed regulations, be subject to a shared responsibility payment. The commentators recommended that pregnancy-related Medicaid be considered minimum essential coverage solely for section 5000A (and not section 36B). In the alternative, they recommended that women enrolled in pregnancy-related Medicaid who are not also enrolled in services providing minimum essential coverage be granted a hardship exemption from the shared responsibility payment.

The final regulations do not adopt the recommendation to treat pregnancy-related Medicaid as minimum essential coverage solely for section 5000A. As explained in the preamble to the proposed regulations, states have the option to provide pregnant women with full Medicaid coverage as pregnancy-related Medicaid. Some states adopt this option. Other states do not provide full Medicaid coverage as pregnancy-related Medicaid. The final regulations continue to provide that pregnancy-related Medicaid is not minimum essential coverage.

In addition, the final regulations do not adopt the recommendation that women with pregnancy-related Medicaid be granted a hardship exemption because rules regarding eligibility for the hardship exemption fall under the jurisdiction of HHS. See section 5000A(e)(5).

However, individuals who are eligible for pregnancy-related Medicaid may not know at open enrollment for the 2014 coverage year that such coverage is not minimum essential coverage. Accordingly, the Treasury Department and the IRS anticipate issuing guidance providing that women covered with pregnancy-related Medicaid for a month in 2014 will not be liable for the shared responsibility payment for that month.

2. Section 1115 Demonstration Projects

Section 1115 of the Social Security Act (42 U.S.C. 1315) authorizes the Secretary of HHS to approve experimental, pilot, or demonstration projects that promote the objectives of the Medicaid program (Section 1115 demonstration projects). These projects give states flexibility to test new or existing approaches to financing and delivering Medicaid. Some Section 1115 demonstration projects provide full Medicaid benefits, while others provide a specific and narrow set of benefits similar to the optional coverage of family planning services under section 1902(a)(10)(A)(ii)(XXI) of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)(ii)(XXI)) or the optional coverage of tuberculosis-related services under section 1902(a)(10)(A)(ii)(XII) of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)(ii)(XII)).

The proposed regulations do not specifically address whether Section 1115 demonstration projects constitute Medicaid coverage under Title XIX of the Social Security Act for purposes of section 5000A. A number of commentators recommended against considering as minimum essential coverage Section 1115 demonstration projects that provide a specific and narrow set of benefits.

The final regulations reserve on addressing the status of Section 1115 demonstration projects as minimum essential coverage and, accordingly, do not address the commentators' recommendation that a specific and narrow set of benefits provided under a Section 1115 demonstration project be excluded from the definition of minimum essential coverage. It is anticipated that future regulations that will be effective starting January 1, 2014 will provide that coverage authorized under a Section 1115 demonstration project is not government-sponsored minimum essential coverage. However, certain coverage may be recognized as minimum essential coverage by the Secretary of HHS, in consultation with the Secretary of the Treasury, under section 5000A(f)(1)(E).

Finally, it is anticipated that to the extent future guidance excludes benefits provided under certain Section 1115 demonstration projects from minimum essential coverage, the guidance also will provide that individuals who are enrolled in a Section 1115 demonstration project that is not minimum essential coverage for a month in 2014 will not be liable for the shared responsibility payment for that month.

3. Medicaid Premium Assistance Programs

The proposed regulations do not specifically address whether and to what extent Medicaid premium assistance programs are minimum essential coverage. Commentators recommended that, to preserve affected Medicaid beneficiaries' ability to receive the premium tax credit under section 36B, Medicaid premium assistance programs, which are intended to supplement comprehensive coverage, be excluded from the definition of minimum essential coverage. Commentators referred to, in particular, the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) state plan option (commonly referred to as the “Katie Beckett option”), coverage under an optional Medicaid coverage group authorized by the Family Opportunity Act of 2006 (FOA), home and community based services waivers, and “Katie Beckett” waivers.

Medicaid premium assistance programs function as a service delivery mechanism for benefits covered under the Medicaid program and do not solely supplement a private health insurance plan. In general, Medicaid premium assistance programs are provided under the authority of sections 1905, 1906, and 1906A of the Social Security Act (42 U.S.C. 1396d, 1396e, and 1396e-1) to individuals described in section 1902 of the Social Security Act (42 U.S.C. 1396a) who are eligible for full Medicaid benefits.

Under section 1906 or 1906A of the Social Security Act, states may use Medicaid funds to pay premiums and cost sharing incurred by Medicaid-eligible individuals to enroll in employer-sponsored coverage if it is cost-effective for the state to do so (as compared to the cost of providing covered services through a standard service delivery mechanism, such as fee-for-service or per-patient payments to a managed care organization). States exercising this option must provide “wrap around” coverage to ensure individuals can access benefits covered under the state's Medicaid program that are not covered under the employer-sponsored insurance. Authority for states to create similar premium assistance programs for individuals to enroll in private coverage in the individual market is provided in regulations under the authority of section 1905(a)(29) of the Social Security Act published by HHS on July 15, 2013, at 42 CFR 435.1015. Individuals enrolled in the premium assistance programs are eligible for full Medicaid benefits. Accordingly, the final regulations do not adopt the commentators' recommendation. Instead, coverage under a Medicaid premium assistance program under the authority of section 1905, 1906, or 1906A of the Social Security Act to individuals described in section 1902 is minimum essential coverage.

Section 134(a) of TEFRA (Pub. L. 97-248) added section 1902(e)(3) of the Social Security Act (42 U.S.C. 1396a(e)(3)), under which states may provide Medicaid to a disabled child who requires an institutional level of care (such as that provided in a nursing facility) without regard to the income of the child's parent(s). A child eligible under this option is eligible for full Medicaid benefits. Enrollment of the child in private health insurance is not required as a condition of eligibility under the TEFRA option. Whenever a Medicaid beneficiary is enrolled in other coverage, Medicaid serves as the secondary payer. Thus, if a child enrolled in Medicaid under this option also has other coverage, Medicaid will serve as the secondary payer, and in that sense will wrap around the child's private insurance coverage. Because an eligible child receives full Medicaid benefits, the coverage provided is minimum essential coverage.

Sections 6062(a)(1)(A)(iii) and 6062(a)(1)(B) of FOA (Pub. L. 109-171) added sections 1902(a)(10)(A)(ii)(XIX) and 1902(cc) of the Social Security Act, under which states may provide Medicaid to disabled children who are not otherwise eligible for Medicaid because their income is too high. Children eligible for Medicaid under this option are entitled to the full Medicaid benefits provided to all other children enrolled in Medicaid. However, under section 1902(cc)(2)(A) of the Social Security Act, if the child's parents have access to employer-sponsored coverage in which the child can enroll and the employer pays at least 50 percent of the annual premium for coverage of the child under the employer plan, the family is required to enroll the child in the employer-sponsored coverage, and Medicaid will wrap around that coverage, providing services not covered under the employer plan. If the parents do not have access to employer-sponsored coverage for the child or if the employer does not contribute at least the minimum amount required, the family is not required to enroll the child in the coverage, and the Medicaid program will cover all Medicaid benefits. In either situation, the child is eligible for all Medicaid benefits. Therefore, coverage under this option is minimum essential coverage.

In addition, under Section 1915(c) of the Social Security Act (42. U.S.C. 1396n(c)) states have the authority to provide home and community based services to certain individuals covered under the Medicaid state plan in addition to the full Medicaid benefit package. Because these individuals receive comprehensive Medicaid benefits, coverage under a home and community based services waiver authorized under section 1915(c) of the Social Security Act is minimum essential coverage.

The treatment of Medicaid coverage provided through a “Katie Beckett” waiver referred to by the commentators is addressed in section II.A.2. of this preamble, discussing Section 1115 demonstration projects.

4. Medicaid for the Medically Needy

The Social Security Act provides states with flexibility to extend Medicaid eligibility to individuals with high medical expenses who would otherwise be eligible for Medicaid but for their income level (medically needy individuals). See section 1902(a)(10)(C) of the Social Security Act (42 U.S.C. 1396a(a)(10)(C)) and 42 CFR 435.300 and following (Subpart D). Over half of the states have opted to provide coverage to medically needy individuals. In general, individuals whose income is in excess of the maximum allowed for Medicaid eligibility but who are otherwise eligible for Medicaid may “spend down” their income, based on incurred medical expenses, and thereby become eligible for the benefits provided for medically needy individuals in the state. States providing coverage to medically needy individuals must establish a “budget period” of between one and six months. Eligibility for coverage as a medically needy individual, which must be determined each budget period, is provided only after an individual incurs sufficient medical expenses to “spend down” to the qualifying income level. Thus, depending on an individual's medical needs and the options exercised by the state program, eligibility may be assessed as frequently as every month, and an individual may move in and out of Medicaid coverage multiple times in a year. States are permitted, and some have adopted the option, to offer benefits to the medically needy that are more limited than the benefits generally provided to Medicaid beneficiaries.

Commentators requested excluding Medicaid coverage provided to medically needy individuals from the definition of minimum essential coverage because the benefits available may be limited. In addition, treating Medicaid coverage for the medically needy as minimum essential coverage can lead those individuals to experience multiple changes in premium tax credit eligibility throughout a year, creating administrative complexity.

The final regulations reserve on whether Medicaid coverage provided to a medically needy individual is minimum essential coverage. It is anticipated that future regulations that will be effective starting in 2014 will provide that Medicaid coverage provided to a medically needy individual is not government-sponsored minimum essential coverage. However, certain coverage of this type may be recognized as minimum essential coverage by the HHS Secretary, in consultation with the Treasury Secretary, under section 5000A(f)(1)(E).

To the extent that future guidance excludes certain Medicaid coverage provided to medically needy individuals from the definition of minimum essential coverage, it is anticipated that the guidance also will provide that individuals receiving Medicaid coverage provided to medically needy individuals for a month in 2014 will not be liable for the shared responsibility payment for that month.

5. TRICARE

In accordance with section 5000A(f)(1)(A)(v), the proposed regulations provide that minimum essential coverage under government-sponsored programs includes medical coverage under chapter 55 of Title 10, U.S.C., including coverage under the TRICARE program. However, after publishing the proposed regulations, the Treasury Department and the IRS identified two programs under chapter 55 of Title 10, U.S.C., as providing benefits and services that are limited either in availability or in scope: (1) The program providing care limited to the space available in a facility for the uniformed services for individuals excluded from TRICARE coverage under section 1079(a), 1086(c)(1), or 1086(d)(1) of Title 10, U.S.C.; and (2) the program for individuals not on active duty for an injury, illness, or disease, incurred or aggravated in the line of duty under sections 1074a and 1074b of Title 10, U.S.C.

The proposed regulations exclude certain government-provided health care programs from the definition of minimum essential coverage because they do not provide a comprehensive level of benefits. Similarly, certain limited benefit TRICARE programs do not provide a comprehensive level of benefits. It is anticipated that future regulations that will be effective starting in 2014 will provide that coverage under a limited benefit TRICARE program is not minimum essential coverage. However, the final regulations reserve on the status of these programs as minimum essential coverage.

It is anticipated that if future guidance excludes the limited-availability TRICARE program under section 1079(a), 1086(c)(1), or 1086(d)(1) of Title 10, U.S.C., and the limited-scope line-of-duty TRICARE program under sections 1074a and 1074b of Title 10, U.S.C., from the definition of minimum essential coverage, the guidance also will provide that individuals enrolled in either TRICARE program for any month in 2014 will not be liable for a shared responsibility payment for that month.

The preamble to the proposed regulations explains that a self-insured group health plan is an eligible employer-sponsored plan. Several commentators requested additional clarification concerning the treatment of a self-insured group health plan because these plans are not offered in a large or small group market within a state. The rule in the proposed regulations is revised to clarify that a self-insured group health plan is an eligible employer-sponsored plan, regardless of whether the plan could be offered in the large or small group market in a state.

2. Arrangements To Provide Employer-Subsidized Coverage Under Plans in the Individual Market

The proposed regulations do not specifically address arrangements in which an employer provides subsidies or funds a pre-tax arrangement for employees to use to obtain coverage under plans offered in the individual market (as defined in section 5000A(f)(1)(C)). The Treasury Department and the IRS received several comments on arrangements of this type. One commentator suggested that certain arrangements of this type be treated as eligible employer-sponsored plans, arguing that treating these arrangements as eligible employer-sponsored plans would increase flexibility for employers and employees in satisfying their respective shared responsibility requirements.

The final regulations do not specifically address these arrangements. It is anticipated that future guidance will address the application of section 5000A and the ACA's insurance market reforms to these types of arrangements.

3. Former Employees

The proposed regulations provide that the term employee includes former employees and, as a result, treat coverage provided by an employer to former employees as coverage under an eligible employer-sponsored plan. Commentators noted that retiree coverage may be unlike coverage offered to current employees in terms of cost, scope of benefits, and enrollment opportunities and, therefore, should be treated differently from other employer-provided coverage.

Employer-sponsored group health plans offered to former employees are treated similarly for purposes of the Public Health Service Act, the Employee Retirement Income Security Act, and other provisions of the Code. Therefore, the final regulations do not adopt this suggestion, and retiree coverage under a group health plan is minimum essential coverage. However, the final regulations provide that, for the lack of affordable coverage exemption, an individual will not be eligible for retiree coverage unless the individual enrolls. Therefore, an individual who is eligible for retiree coverage but does not enroll disregards that eligibility in determining qualification for the lack of affordable coverage exemption.

4. Plans Offered on Behalf of Employers

The Treasury Department and the IRS received comments asking whether medical coverage offered to employees by an organization acting on behalf of an employer qualifies as an eligible employer-sponsored plan. For example, commentators asked whether a multiemployer plan or a single employer collectively-bargained plan is an eligible employer-sponsored plan for the employees covered by the collective bargaining arrangement and eligible to participate in the plan. In addition, commentators asked whether a plan offered to an employer's employees by a third party, such as a professional employer organization or leasing company, is an eligible employer-sponsored plan for the employees eligible to participate in the plan. The final regulations are revised to provide that a plan offered by an employer to an employee includes a plan offered to an employee on behalf of an employer. No inference is intended from this treatment that the third party is the employer for this or any other provision of the Code or related laws.

The proposed regulations provide that a government-sponsored program (as described in § 1.5000A-2(b)(2) of the proposed regulations) is not an eligible employer-sponsored plan. However, some individuals are eligible for minimum essential coverage under government-sponsored plans by reason of employment with the United States government. For example, the Nonappropriated Fund Health Benefits Program of the Department of Defense, established under section 349 of the National Defense Authorization Act for Fiscal Year 1995 (Pub. L. 103-337; 10 U.S.C. 1587 note), is offered by an instrumentality of the Department of Defense to its employees. Accordingly, the final regulations provide that the Nonappropriated Fund Health Benefits Program is a government-sponsored program and an eligible employer-sponsored plan. The Treasury Department and the IRS are considering whether other government-sponsored programs are eligible employer-sponsored plans.

C. Plan in the Individual Market

The proposed regulations provide that a plan in the individual market means health insurance coverage offered to individuals not in connection with a group health plan, including a qualified health plan offered by an Exchange. Commentators stated that this definition is ambiguous about whether qualified health plans are plans in the individual market. The final regulations clarify that qualified health plans offered through Exchanges are plans in the individual market.

Another commentator asked whether a plan offered to one specific individual is a plan in the individual market. A plan offered to one specific individual is a plan in the individual market only if the plan is health insurance coverage under section 2791(b)(1) of the Public Health Service Act, is not short-term limited duration coverage, and is offered in the individual market within a state. The final regulations clarify the meaning of the term plan in the individual market by restating definitions of other essential terms.

D. Foreign Issuer Coverage 1. In General

Under section 5000A(f)(4) and § 1.5000A-1(b)(2) of the final regulations, an individual is treated as having minimum essential coverage for a month if the individual is a bona fide resident of a United States possession for the month, or if the month occurs during any period described in section 911(d)(1)(A) or section 911(d)(1)(B) that is applicable to the individual. Section 911(d)(1)(A) is applicable to a citizen of the United States who has a tax home outside the United States and is a bona fide resident of a foreign country or countries during an uninterrupted period that includes an entire taxable year. Section 911(d)(1)(B) is applicable to a U.S. citizen or U.S. resident (as defined in section 7701(b)) who has a tax home outside the United States and is present in a foreign country or countries for at least 330 full days during a period of 12 consecutive months.

A commentator expressed a concern that a United States citizen or national who resides outside the United States may be subject to the shared responsibility penalty even if the individual has health care coverage provided by a foreign health insurance issuer (sometimes referred to as a form of expatriate coverage) or the government of the foreign country where the individual resides. The commentator requested that individuals in this situation be exempt from section 5000A.

Under section 5000A(f)(4), a United States citizen or national satisfying the requirements of section 911(d)(1) is deemed to have minimum essential coverage. If the individual does not satisfy those requirements, the remaining provisions of section 5000A apply. Accordingly, the final regulations do not adopt the recommendation.

The same commentator and another commentator asked whether expatriate coverage or coverage provided by a foreign insurance issuer to foreign nationals lawfully present in the United States for an extended period of time is minimum essential coverage. The commentators acknowledged that some coverage provided by a foreign health insurance issuer is not offered in the small or large group market, or the individual market, within a state. However, the commentators noted that the foreign health care coverage may be substantially similar to other types of plans recognized as minimum essential coverage.

Under section 1304(d) of the Affordable Care Act (42 U.S.C. 18024(d)) and the final regulations, the term state means each of the 50 states and the District of Columbia. Coverage or a plan provided by an issuer that is not offered within a state is neither an eligible employer-sponsored plan nor a plan in the individual market. Accordingly, the final regulations do not adopt this recommendation.

However, to provide relief in the situations that the two commentators described, the HHS MEC regulations provide a process by which a sponsor of a health plan, whether domestic or foreign, may apply for recognition as minimum essential coverage under section 5000A(f)(1)(E). See 45 CFR 156.604.

2. Territory of the United States

A commentator questioned whether coverage offered by issuers located in territories of the United States is minimum essential coverage. Insured plans must be offered within a state to be treated as an eligible employer-sponsored plan or as a plan in the individual market. Section 1304(d) of the Affordable Care Act (42 U.S.C. 18024(d)) and the final regulations provide that the term state means each of the 50 states and the District of Columbia. Consequently, in general, health insurance coverage and insured group health plans that are not offered within one of the 50 states or the District of Columbia are neither eligible employer-sponsored plans nor plans in the individual market.

However, section 1323(a)(1) of the Affordable Care Act (42 U.S.C. 18043(a)(1)) provides that a territory electing to establish an Exchange in accordance with part II of subtitle D of the Affordable Care Act is treated as a state for applying basic rules governing qualified health plans offered through Exchanges. As discussed earlier in this preamble, a qualified health plan offered through an Exchange is a plan in the individual market within a state. Accordingly, the final regulations clarify that a qualified health plan offered through an Exchange established by and within a territory of the United States under section 1323(a)(1) of the Affordable Care Act is a plan in the individual market within a state.

Consistent with section 5000A(d)(2)(A), the proposed regulations provide that individuals who are members of a recognized religious sect or division of the sect described in section 1402(g)(1) and who are adherents of the established tenets or teachings of the sect or division are eligible to receive a religious conscience exemption certification from an Exchange. Commentators recommended that section 5000A(d)(2)(A) be narrowly construed to limit the ability of parents who qualify for this religious conscience exemption to apply for a religious conscience exemption on behalf of any minor children who, owing to their youth, should not be considered full members of a recognized religious sect or division of the sect.

Section 5000A(d)(2)(A) does not make a distinction between full and less than full membership in a sect or division. Accordingly, the final regulations do not adopt this recommendation. However, as explained in the preamble to the proposed regulations, the section 5000A religious conscience exemption is administered by HHS through Exchanges. The HHS MEC regulations permit adult members of a sect or division to apply for the exemption on behalf of their minor children. See 45 CFR 155.600 (definitions of applicant and application filer); 45 CFR 155.605(c)(1) (eligibility standards for religious conscience exemption). Those regulations further provide, however, that once a child turns 21 years of age, to maintain the religious conscience exemption the child must reapply for the exemption and attest to membership individually. See 45 CFR 155.605(c)(2).

B. Members of Health Care Sharing Ministries

The proposed regulations provide an exemption for members of health care sharing ministries as defined in section 5000A(d)(2)(B)(ii). Commentators recommended that individuals seeking the exemption based on their membership in health care sharing ministries be required to demonstrate membership for every month of the taxable year for which they seek the exemption. The proposed regulations provide that eligibility for the exemption for members of a health care sharing ministry is determined monthly, and the final regulations retain this rule.

C. Exempt Noncitizens

Section 5000A(d)(3) and the proposed regulations provide that an individual who is not a citizen or national of the United States is exempt for a month if the individual is not lawfully present in the United States in that month. The proposed regulations provide that, for this exemption, an individual who is not a citizen or national of the United States is treated as not lawfully present in the United States for a month in a taxable year if the individual is either (1) a nonresident alien as defined in section 7701(b)(1)(B) for that taxable year or (2) does not have lawful immigration status in the United States (within the meaning of 45 CFR 155.20) for any day in the month.

Many commentators requested guidance on how individuals claim the exemption for being not lawfully present in the United States and recommended several reporting methods for this exemption. The final regulations do not adopt any of the recommended reporting methods. However, guidance on claiming exemptions will be provided in forms, instructions, publications, or other guidance published by the IRS, and these comments will be considered in developing that guidance.

Commentators also requested that the exemption for individuals not lawfully present in the United States apply to all members of a taxpayer's family if the taxpayer qualifies for the exemption. Section 5000A applies its coverage requirement and exemptions on an individual basis, which is inconsistent with the commentators' recommendation. Accordingly, the final regulations do not adopt this suggestion.

D. Incarcerated Individuals

Section 5000A(d)(4) provides that an individual is exempt for a month for which the individual is incarcerated (other than incarceration pending the disposition of charges). The proposed regulations clarify that an individual confined for at least one day in a jail, prison, or similar penal institution or correctional facility after the disposition of charges is exempt for the month that includes the day of confinement.

A commentator urged that those incarcerated while awaiting the final disposition of charges also be given an exemption on account of their incarceration. This recommendation is inconsistent with section 5000A(d)(4), which distinguishes between individuals incarcerated while awaiting final disposition of charges and those incarcerated after the final disposition of charges. Accordingly, the final regulations do not adopt this suggestion.

In the alternative, the commentator requested treating incarcerated individuals whose Medicaid benefits have been suspended as having minimum essential coverage. An individual incarcerated pending disposition of charges whose Medicaid benefits have been suspended remains enrolled in Medicaid, is entitled to receive benefits for healthcare provided outside the state prison system, and is not required to re-enroll in Medicaid at the end of incarceration. Thus, treating the individual as covered under Medicaid is consistent with § 1.5000A-1(b)(1), which provides that an individual has minimum essential coverage for the month when the individual is enrolled in and entitled to receive benefits under a program or plan identified as minimum essential coverage in § 1.5000A-2 for at least one day in the month. Accordingly, an individual incarcerated pending disposition of charges whose Medicaid benefits have been suspended is covered under minimum essential coverage, and no revision to the regulations is necessary to address the commentator's concern.

E. Individuals Who Cannot Afford Coverage 1. Household Income

To determine affordability of coverage, section 5000A(e)(1)(A) and the proposed regulations require taxpayers to increase household income by the portion of the required contribution made through a salary reduction arrangement and excluded from gross income. The preamble to the proposed regulations notes that the information necessary to make the required adjustment may not be readily available to the employee or the IRS and requests comments on practicable ways, if any, for making the adjustment.

A commentator stated that the information required is not readily available. The commentator recommended that, considering the limited effect of the required adjustment, the IRS postpone enforcement of the adjustment until a later year when the necessary information may become more readily available and when the effect of the adjustment may be accurately assessed.

The portion of the required contribution made through a salary reduction arrangement that is excluded from gross income includes amounts that an employee pays out of the employee's salary on a pre-tax basis for minimum essential coverage under a cafeteria plan that is an eligible employer-sponsored plan. Although the information may not be readily available, generally it is possible for an employee to identify amounts paid through a salary reduction arrangement that are excluded from the individual's gross income. In addition, under the HHS MEC regulations, a hardship exemption is available for an individual who lacks access to affordable minimum essential coverage based on projected household income. An individual seeking this exemption must adjust projected household income by the amount paid through a salary reduction arrangement for minimum essential coverage that is excluded in the prior year. Accordingly, the final regulations do not adopt this recommendation.

Several commentators suggested allowing an exemption or safe harbor for individuals whose income early in the taxable year appears to entitle them to the lack of affordable coverage exemption and who, as a result, do not obtain minimum essential coverage. If these individuals have large increases in income later in the year, they may be liable for the shared responsibility payment if no other exemption applies. The final regulations do not adopt this recommendation because it is not administrable. The IRS does not have the monthly income data necessary to verify eligibility for the proposed safe harbor or exemption. However, as explained in this preamble, the HHS MEC regulations provide for a prospective hardship exemption based on a lack of affordable coverage determined on the basis of projected household income. Individuals may mitigate potential adverse consequences of mid-year increases in household income by applying for this hardship exemption prospectively.

2. Required Contribution Percentage

One commentator requested a special rule for determining the inflation adjustment of the required contribution percentage for low-income taxpayers to provide relief if health care expenses grow more rapidly than incomes. Section 5000A(e)(1)(D) provides specific rules for annually calculating a uniform required contribution inflation adjustment. Accordingly, the final regulations do not adopt this suggestion.

The commentator also requested a special rule to avoid requiring individuals to visit Exchanges to apply for a hardship exemption. Under section 5000A(e)(5), the authority to prescribe the procedures for applying for exemptions resides with the Secretary of HHS. Based on this authorization, the HHS MEC regulations provide guidance addressing which hardship exemptions must be acquired through an Exchange and which may be claimed directly on a Federal income tax return.

3. Required Contributiona. In General

A commentator recommended that individuals who are eligible for unaffordable coverage under an eligible employer-sponsored plan qualify for the lack of affordable coverage exemption only if coverage purchased through an Exchange would also be unaffordable. The commentator noted that those individuals might find affordable coverage under plans in the individual market and that, if so, they should be encouraged to enroll in them. Section 5000A(e)(1)(B) defines the required contribution for two discrete groups based on whether an individual is eligible for coverage under eligible employer-sponsored plans. An individual cannot be described in both groups. Thus, section 5000A does not require an individual to test the affordability of coverage under both an eligible employer-sponsored plan and a plan in the individual market. Accordingly, the final regulations do not adopt this suggestion.

The proposed regulations under section 36B published on May 3, 2013 (78 FR 25909) (the proposed minimum value regulations) provide that amounts newly made available for the current plan year under a health reimbursement arrangement (HRA) that is integrated with an eligible employer-sponsored plan are counted toward the employee's required contribution in determining the affordability of the coverage if the employee may use the amounts only for premiums or may choose to use the amounts for either premiums or cost sharing. The preamble to the proposed minimum value regulations states that regulations under section 5000A will provide a similar rule for determining the effect of amounts newly made available under an HRA for each plan year on the determination of affordability of minimum essential coverage. It is anticipated that future guidance under section 5000A will address the treatment of employer contributions to HRAs in determining the required contribution in a manner consistent with the treatment of these contributions in final rulemaking under section 36B.

The proposed regulations provide that a former employee eligible to enroll in continuation coverage is eligible for coverage under an eligible employer-sponsored plan only if the former employee enrolls in it. In addition to extending this rule to retiree coverage, the final regulations clarify that an individual eligible for continuation or retiree coverage because of a relationship to a former employee is treated in the same manner as the former employee. Therefore, individuals eligible for continuation or retiree coverage who do not enroll in it, and who are not eligible for coverage under another eligible employer-sponsored plan, determine qualification for the lack of affordable coverage exemption under the rules that apply to individuals ineligible for coverage for eligible employer-sponsored plans.

To determine the required contribution for individuals who are ineligible for coverage under eligible employer-sponsored plans, the proposed regulations provide that the required contribution is the premium for the applicable plan reduced by the amount of the credit allowable under section 36B. The proposed regulations further provide that, in general, the applicable plan is the lowest cost bronze plan available in the Exchange serving the rating area where the individual resides that would cover all members of the individual's nonexempt family taking into account the rating factors (for example, an individual's age) that an Exchange would use to determine the cost of coverage. The proposed regulations allow taxpayers to make an irrevocable election to use a simplified method to determine the premium for the applicable plan.

One commentator requested that the election to use the simplified method to determine the premium for the applicable plan, when a plan is not offered that covers members of the entire tax household, be revocable. The Treasury Department and the IRS are considering the comment, as well as alternative simplified methods of identifying the premium for the applicable plan. Accordingly, the final regulations remove the simplified method rule that was included in the proposed regulations and reserve on providing simplified methods for identifying the premium for the applicable plan.

A commentator asked that characteristics of individuals in a taxpayer's nonexempt family taken into account in identifying the applicable plan expressly include tobacco use. The rule is intended to reflect as accurately as possible a taxpayer's actual premium amount. Therefore, the final regulations clarify that the characteristics used to identify the applicable plan include tobacco use.

It is anticipated that future HHS guidance will specify that when determining eligibility for the hardship exemption for individuals who lack affordable coverage based on projected income described in 45 CFR 155.605(g)(2), the Exchange will calculate advance payments of the premium tax credit using the rules specified in the regulations under section 36B, providing that individuals who have minimum essential coverage are excluded from the computation of the applicable benchmark plan. This treatment will ensure that Exchanges can reuse existing advance payment functionality instead of having to develop additional functionality for the sole purpose of supporting this exemption.

d. Wellness Program Incentives

The proposed regulations do not address wellness program incentives. Commentators recommended determining an individual's required contribution without regard to any wellness program incentives that, if received, would lower premiums. A commentator asked that premiums for the applicable plan for an individual residing in a rating area in a state participating in the Individual Market Wellness Program Demonstration Project described in section 2705(l) of the Public Health Service Act (42 U.S.C. 300gg-4(l)) disregard any premium-based wellness incentive requirements, including incentives relating to tobacco use. The proposed minimum value regulations disregard wellness program incentives, except those related to tobacco use, in determining an employee's required contribution under section 36B(c)(2)(C)(i). It is anticipated that future guidance under section 5000A will address the treatment of wellness program incentives in determining the required contribution in a manner consistent with the treatment of these incentives in final rulemaking under section 36B.

F. Household Income Below the Return Filing Threshold

The proposed regulations exempt an individual for a month in a calendar year if the individual's household income for the taxable year is less than the applicable filing threshold. The proposed regulations provide that this below filing threshold exemption may be claimed on an income tax return. Under the proposed regulations an individual is not required to file an income tax return to claim this exemption. One commentator requested that a taxpayer with household income below the applicable filing threshold who files a return remain eligible for this exemption. The final regulations retain the rule that an individual is not required to file a Federal income tax return to claim this exemption and clarify that a taxpayer with household income below the applicable filing threshold who files a Federal income tax return may claim the exemption on the filed return.

The same commentator inquired whether the filing threshold rule for dependents in § 1.5000A-3(f)(2)(ii) of the proposed regulations affects the definition of household income in § 1.5000A-1(d)(7). Under § 1.5000A-3(f)(2)(ii) a dependent's applicable filing threshold is the same as the threshold for the taxpayer claiming the dependent. Section 5000A(e)(2) allows an exemption for an individual whose household income is less than the amount of gross income specified in section 6012(a)(1) with respect to the taxpayer. The taxpayer referred to in section 5000A(e)(2) is the taxpayer claiming the dependent. Accordingly, a dependent claimed for an exemption deduction uses the family's household income and the taxpayer's applicable filing threshold in determining eligibility for the below filing threshold exemption. This treatment has no effect on the household income definition.

G. Members of Indian Tribes

The proposed regulations provide an exemption for individuals who are members of federally-recognized Indian tribes. Many commentators were concerned that this exemption was overly restrictive and recommended that the final regulations broaden the exemption to include all individuals who are eligible to receive services through the Indian Health Service, a tribe or tribal organization clinic, or an urban Indian organization (collectively referred to as I/T/U services). Alternatively, commentators asked that coverage under I/T/U services be recognized as minimum essential coverage solely for section 5000A or that these individuals be eligible for a hardship exemption from Exchanges.

The final regulations do not define coverage under I/T/U services as minimum essential coverage because section 5000A does not specifically identify I/T/U services as minimum essential coverage. However, following consultation among HHS, tribal groups, and the Treasury Department and the IRS, the HHS MEC regulations provide a hardship exemption for an individual who is not a member of a federally-recognized Indian tribe, but who is eligible for services through an Indian health care provider, as defined in 42 CFR 447.50, or is eligible for services through Indian Health Service in accordance with 25 U.S.C. 1680c(a), (b), or (d)(3). See 45 CFR 155.605(g)(6).

Several commentators also requested that individuals be allowed to claim the hardship exemption for those eligible for I/T/U services on their income tax returns. The final regulations do not adopt this suggestion because section 5000A(e)(5) provides HHS, through Exchanges, with the authority to grant hardship exemptions not delegated to the IRS.

H. Short Coverage Gap

The proposed regulations provide that an individual qualifies for the short coverage gap exemption if the continuous period without minimum essential coverage is less than three full calendar months and is the first short coverage gap in the individual's taxable year. Further, in determining whether a gap in coverage qualifies as a short coverage gap, the length of the period without minimum essential coverage is measured by reference to calendar months (for example, January or February) in conjunction with the one day rule in § 1.5000A-1(b). Therefore, if an individual is enrolled in and entitled to receive benefits under a plan identified as minimum essential coverage for one day in a calendar month, the month is not included in the continuous period when applying the short coverage gap exemption.

Some commentators recommended making the short coverage gap exemption available to cover an aggregate period of coverage of less than three months, regardless of whether the period was continuous. The commentators noted that those who switched jobs frequently might have numerous short gaps in coverage throughout the year. The commentators' recommendation is inconsistent with section 5000A(e)(4)(B)(iii), which limits the short coverage gap exemption to one continuous period of less than three months. Accordingly, the final regulations do not adopt this suggestion. However, if a taxpayer has multiple short coverage gaps due to extended waiting periods after switching employment or because of other circumstances that prevent the taxpayer from obtaining coverage, the taxpayer may be eligible for a hardship or other exemption available through an Exchange. See 45 CFR 155.605.

Section 5000A(e)(4)(B)(i) provides that, in general, the length of a continuous period without coverage is determined without regard to the calendar years in which the period occurs. However, section 5000A(e)(4) expressly authorizes the Secretary of the Treasury to prescribe rules for the collection of the shared responsibility payment in cases in which a continuous period includes months in more than one taxable year. The proposed regulations provide rules for a coverage gap that straddles two taxable years. For the earlier taxable year, the coverage gap terminates at the end of the earlier taxable year. For the later taxable year, the coverage gap continues from the earlier taxable year and terminates when the individual no longer lacks minimum essential coverage. Thus, a taxpayer who lacked minimum essential coverage in November and December of one year and January and February of the following year has a coverage gap of two months in the earlier taxable year and four months in the later taxable year.

Some commentators stated that the coverage gap in the earlier year should include months in the later year in which an individual has no minimum essential coverage. Other commentators recommended that all continuous periods in a year begin no earlier than January 1, thereby ignoring any gaps in coverage in the preceding year. The final regulations adopt neither suggestion. To assist taxpayers in timely filing returns and in the interests of efficient tax administration, the final regulations provide that a continuous period terminates no later than the last day of a taxable year. In addition, for the later year when the same administrative concerns do not apply, consistent with section 5000A(e)(4)(B)(i), the final regulations provide that a continuous period may include months in an earlier year.

Under the proposed regulations an individual has minimum essential coverage for a month in which the individual is otherwise exempt from section 5000A for the short coverage gap exemption. One commentator asked whether gaps in coverage in 2013 affect the measurement of gaps in coverage beginning in January 2014. Section 5000A is effective for months beginning on or after January 1, 2014. Accordingly, the final regulations provide that gaps in coverage prior to January 1, 2014, are not taken into account when measuring the length of a coverage gap in 2014.

A commentator requested that any probationary period during which an individual is enrolled in minimum essential coverage but not yet entitled to benefits under the plan not be taken into account in determining the length of a continuous period for the short coverage gap exemption. As discussed in this preamble with regard to a similar comment concerning a taxpayer who submitted an application for Medicaid but is awaiting approval for enrollment, section 5000A(a) requires that an individual have minimum essential coverage for the month. Unless retroactive coverage is provided, an applicant awaiting approval for enrollment is not covered until approval of the application. Therefore, the final regulations do not adopt this recommendation. However, an individual who is unable to obtain coverage in a timely manner because of a lengthy approval process may be otherwise eligible for a hardship or other exemption through an Exchange. See 45 CFR 155.605.

I. Additional Hardship Exemptions

A number of commentators proposed that the IRS adopt additional hardship exemptions to address specific situations. Authority to define circumstances giving rise to a hardship exemption, as well as authority to grant hardship exemptions in individual cases, resides with HHS. HHS has provided guidance on the hardship exemption in the HHS MEC regulations.

Section 155.605(g)(3) of the HHS MEC regulations provides that the IRS may allow a taxpayer to claim a hardship exemption for a calendar year if the taxpayer was not required to file an income tax return because the taxpayer's gross income was below the applicable return filing threshold but nevertheless filed a return, claimed a dependent with a return filing requirement and, as a result, had household income that exceeds the applicable filing threshold.

Section 155.605(g)(5) of the HHS MEC regulations provides that the IRS may allow a taxpayer to claim a hardship exemption for employed family members who are eligible for affordable employer-sponsored self-only coverage, but for whom the aggregate cost of employer-sponsored coverage for all employed members of the family is unaffordable.

The information required to determine eligibility for these hardship exemptions is available only at the time of tax filing. Accordingly, the final regulations provide that eligible taxpayers may claim these two hardship exemptions on a Federal income tax return.

J. Claiming Exemptions From the Shared Responsibility Payment

Section 1.5000A-3(k) of the proposed regulations addresses which exemptions may be certified by an Exchange or claimed on a return, and how to claim exemptions. The HHS MEC regulations address how to request certification for an exemption from an Exchange. The manner for claiming an exemption on a return is more appropriately addressed through IRS forms, instructions, or other publications. Therefore, the final regulations do not provide information on how to claim an exemption on a Federal income tax return.

IV. Accuracy-Related Penalties

One commentator expressed concern that taxpayers would have difficulty accurately calculating the shared responsibility payment. Emphasizing the complexity of the calculation, the commentator requested that the IRS not impose accuracy-related penalties under section 6662 for underpayments caused by erroneous section 5000A computations.

Section 6662 does not apply to a section 5000A shared responsibility payment. The accuracy-related penalty of section 6662(a) applies only to underpayments of tax, defined in section 6664. The section 5000A shared responsibility payment is not taken into consideration in determining whether there is an underpayment of tax under section 6664. Therefore, the shared responsibility payment is not taken into account under section 6662. Forms, instructions, publications, or other guidance to be published by the IRS are anticipated to assist taxpayers in determining the amount of an applicable shared responsibility payment.

V. Effective/Applicability Date

These final regulations apply to taxable years ending after December 31, 2013.

Special Analyses

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. Section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and, because the regulations do not impose a collection of information requirement on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking that preceded these final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business, and no comments were received.

Drafting Information

The principal authors of these final regulations are Sue-Jean Kim and John B. Lovelace of the Office of Associate Chief Counsel (Income Tax and Accounting). Other personnel from the IRS and the Treasury Department participated in their development.

List of Subjects26 CFR Part 1

Income taxes, Reporting and recordkeeping requirements.

26 CFR Part 602

Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

Accordingly, 26 CFR parts 1 and 602 are amended as follows:

PART 1—INCOME TAXESParagraph 1. The authority citation for part 1 is amended by adding an entry in numerical order to read in part as follows:Authority:

26 U.S.C. 7805 * * *

Section 1.5000A-4 also issued under 26 U.S.C. 5000A(e)(4).

Par 2. Sections 1.5000A-0 through 1.5000A-5 are added to read as follows:§ 1.5000A-0 Table of contents.

This section lists the captions contained in §§ 1.5000A-1 through 1.5000A-5.

(a) In general. For each month during the taxable year, a nonexempt individual must have minimum essential coverage or pay the shared responsibility payment. For a month, a nonexempt individual is an individual in existence for the entire month who is not an exempt individual described in § 1.5000A-3.

(b) Coverage under minimum essential coverage—(1) In general. An individual has minimum essential coverage for a month in which the individual is enrolled in and entitled to receive benefits under a program or plan identified as minimum essential coverage in § 1.5000A-2 for at least one day in the month.

(2) Special rule for United States citizens or residents residing outside the United States or residents of territories. An individual is treated as having minimum essential coverage for a month—

(i) If the month occurs during any period described in section 911(d)(1)(A) or section 911(d)(1)(B) that is applicable to the individual; or

(ii) If, for the month, the individual is a bona fide resident of a possession of the United States (as determined under section 937(a)).

(c) Liability for shared responsibility payment—(1) In general. A taxpayer is liable for the shared responsibility payment for a month for which—

(i) The taxpayer is a nonexempt individual without minimum essential coverage; or

(ii) A nonexempt individual for whom the taxpayer is liable under paragraph (c)(2) or (c)(3) of this section does not have minimum essential coverage.

(2) Liability for dependents—(i) In general. For a month when a nonexempt individual does not have minimum essential coverage, if the nonexempt individual is a dependent (as defined in section 152) of another individual for the other individual's taxable year including that month, the other individual is liable for the shared responsibility payment attributable to the dependent's lack of coverage. An individual is a dependent of a taxpayer for a taxable year if the individual satisfies the definition of dependent under section 152, regardless of whether the taxpayer claims the individual as a dependent on a Federal income tax return for the taxable year. If an individual may be claimed as a dependent by more than one taxpayer in the same calendar year, the taxpayer who properly claims the individual as a dependent for the taxable year is liable for the shared responsibility payment attributable to the individual. If more than one taxpayer may claim an individual as a dependent in the same calendar year but no one claims the individual as a dependent, the taxpayer with priority under the rules of section 152 to claim the individual as a dependent is liable for the shared responsibility payment for the individual.

(ii) Special rules for dependents adopted or placed in foster care during the taxable year—(A) Taxpayers adopting an individual. If a taxpayer adopts a nonexempt dependent (or accepts a nonexempt dependent who is an eligible foster child as defined in section 152(f)(1)(C)) during the taxable year and is otherwise liable for the nonexempt dependent under paragraph (c)(2)(i) of this section, the taxpayer is liable under paragraph (c)(2)(i) of this section for the nonexempt dependent only for the full months in the taxable year that follow the month in which the adoption or acceptance occurs.

(B) Taxpayers placing an individual for adoption. If a taxpayer who is otherwise liable for a nonexempt dependent under paragraph (c)(2)(i) of this section places (or, by operation of law, must place) the nonexempt dependent for adoption or foster care during the taxable year, the taxpayer is liable under paragraph (c)(2)(i) of this section for the nonexempt dependent only for the full months in the taxable year that precede the month in which the adoption or foster care placement occurs.

(C) Examples. The following examples illustrate the provisions of this paragraph (c)(2)(ii). In each example the taxpayer's taxable year is a calendar year.

Example 1.

Taxpayers adopting a child. (i) E and F, married individuals filing a joint return, initiate proceedings for the legal adoption of a 2-year old child, G, in January 2016. On May 15, 2016, G becomes the adopted child (within the meaning of section 152(f)(1)(B)) of E and F, and resides with them for the remainder of 2016. Prior to the adoption, G resides with H, an unmarried individual, with H providing all of G's support. For 2016 G meets all requirements under section 152 to be E and F's dependent, and not H's dependent.

(ii) Under paragraph (c)(2) of this section, E and F are not liable for a shared responsibility payment attributable to G for January through May of 2016, but are liable for a shared responsibility payment attributable to G, if any, for June through December of 2016. H is not liable for a shared responsibility payment attributable to G for any month in 2016, because G is not H's dependent for 2016 under section 152.

Example 2.

Taxpayers placing a child for adoption. (i) The facts are the same as Example 1, except the legal adoption occurs on August 15, 2016, and, for 2016, G meets all requirements under section 152 to be H's dependent, and not E and F's dependent.

(ii) Under paragraph (c)(2) of this section, H is liable for a shared responsibility payment attributable to G, if any, for January through July of 2016, but is not liable for a shared responsibility payment attributable to G for August through December of 2016. E and F are not liable for a shared responsibility payment attributable to G for any month in 2016, because G is not E and F's dependent for 2016 under section 152.

(3) Liability of individuals filing a joint return. Married individuals (within the meaning of section 7703) who file a joint return for a taxable year are jointly liable for any shared responsibility payment for a month included in the taxable year.

(d) Definitions. The definitions in this paragraph (d) apply to this section and §§ 1.5000A-2 through 1.5000A-5.

(17) Shared responsibility family. Shared responsibility family means, for a month, all nonexempt individuals for whom the taxpayer (and the taxpayer's spouse, if the taxpayer is married and files a joint return with the spouse) is liable for the shared responsibility payment under paragraph (c) of this section.

(18) State. State means each of the 50 states and the District of Columbia.

§ 1.5000A-2 Minimum essential coverage.

(a) In general. Minimum essential coverage means coverage under a government-sponsored program (described in paragraph (b) of this section), an eligible employer-sponsored plan (described in paragraph (c) of this section), a plan in the individual market (described in paragraph (d) of this section), a grandfathered health plan (described in paragraph (e) of this section), or other health benefits coverage (described in paragraph (f) of this section). Minimum essential coverage does not include coverage described in paragraph (g) of this section. All terms defined in this section apply for purposes of this section and § 1.5000A-1 and §§ 1.5000A-3 through 1.5000A-5.

(b) Government-sponsored program—(1) In general. Except as provided in paragraph (2), government-sponsored program means any of the following:

(i) Medicare. The Medicare program under part A of Title XVIII of the Social Security Act (42 U.S.C. 1395c and following sections);

(ii) Medicaid. The Medicaid program under Title XIX of the Social Security Act (42 U.S.C. 1396 and following sections), other than—

(A) Optional coverage of family planning services under section 1902(a)(10)(A)(ii)(XXI) of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)(ii)(XXI));

(B) The Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) authorized under 38 U.S.C. 1781; and

(C) The comprehensive health care program authorized under 38 U.S.C. 1803 and 38 U.S.C. 1821 for certain children of Vietnam Veterans and Veterans of covered service in Korea who are suffering from spina bifida.

(vi) Peace Corp program. A health plan under section 2504(e) of Title 22, U.S.C. (relating to Peace Corps volunteers); and

(vii) Nonappropriated Fund Health Benefits Program. The Nonappropriated Fund Health Benefits Program of the Department of Defense, established under section 349 of the National Defense Authorization Act for Fiscal Year 1995 (Pub. L. 103-337; 10 U.S.C. 1587 note).

(2) Government-sponsored program special rules—(i) Coverage authorized under Section 1115 of the Social Security Act. [Reserved]

(i) Group health insurance coverage offered by, or on behalf of, an employer to the employee that is—

(A) A governmental plan (within the meaning of section 2791(d)(8) of the Public Health Service Act (42 U.S.C. 300gg-91(d)(8)));

(B) Any other plan or coverage offered in the small or large group market within a State;

(C) A grandfathered health plan (within the meaning of paragraph (e) of this section) offered in a group market; or

(ii) A self-insured group health plan under which coverage is offered by, or on behalf of, an employer to the employee.

(2) Government-sponsored program generally not an eligible employer-sponsored plan. Except for the program identified in paragraph (b)(7) of this section, a government-sponsored program described in paragraph (b) of this section is not an eligible employer-sponsored plan.

(d) Plan in the individual market—(1) In general. Plan in the individual market means health insurance coverage offered to individuals in the individual market within a state, other than short-term limited duration insurance within the meaning of section 2791(b)(5) of the Public Health Service Act (42 U.S.C. 300gg-91(b)(5)).

(2) Qualified health plan offered by an Exchange. A qualified health plan offered by an Exchange is a plan in the individual market. If a territory of the United States elects to establish an Exchange under section 1323(a) and (b) of the Affordable Care Act (42 U.S.C. 18043(a)(1), (b)), a qualified health plan offered by that Exchange is a plan in the individual market.

(f) Other coverage that qualifies as minimum essential coverage. Minimum essential coverage includes any plan or arrangement recognized by the Secretary of Health and Human Services, in coordination with the Secretary of the Treasury, as minimum essential coverage.

(g) Excepted benefits not minimum essential coverage. Minimum essential coverage does not include any health insurance coverage that consists solely of excepted benefits described in section 2791(c)(1), (c)(2), (c)(3), or (c)(4) of the Public Health Service Act (42 U.S.C. 300gg-91(c)).

§ 1.5000A-3 Exempt individuals.

(a) Members of recognized religious sects—(1) In general. An individual is an exempt individual for a month that includes a day on which the individual has in effect a religious conscience exemption certification described in paragraph (a)(2) of this section.

(2) Exemption certification. A religious conscience exemption certification is issued by an Exchange in accordance with the requirements of section 1311(d)(4)(H) of the Affordable Care Act (42 U.S.C. 18031(d)(4)(H)), 45 CFR 155.605(c), and 45 CFR 155.615(b) and certifies that an individual is—

(i) A member of a recognized religious sect or division of the sect that is described in section 1402(g)(1); and

(ii) An adherent of established tenets or teachings of the sect or division as described in that section.

(b) Member of health care sharing ministries—(1) In general. An individual is an exempt individual for a month that includes a day on which the individual is a member of a health care sharing ministry.

(i) That is described in section 501(c)(3) and is exempt from tax under section 501(a);

(ii) Members of which share a common set of ethical or religious beliefs and share medical expenses among themselves in accordance with those beliefs and without regard to the state in which a member resides or is employed;

(iii) Members of which retain membership even after they develop a medical condition;

(iv) That (or a predecessor of which) has been in existence at all times since December 31, 1999;

(v) Members of which have shared medical expenses continuously and without interruption since at least December 31, 1999; and

(vi) That conducts an annual audit performed by an independent certified public accounting firm in accordance with generally accepted accounting principles and makes the annual audit report available to the public upon request.

(c) Exempt noncitizens—(1) In general. An individual is an exempt individual for a month that the individual is an exempt noncitizen.

(2) Exempt noncitizens. For purposes of this section, an individual is an exempt noncitizen for a month if the individual—

(i) Is not a U.S. citizen or U.S. national for any day during the month; and

(ii) Is either—

(A) A nonresident alien (within the meaning of section 7701(b)(1)(B)) for the taxable year that includes the month; or

(B) An individual who is not lawfully present (within the meaning of 45 CFR 155.20) on any day in the month.

(d) Incarcerated individuals—(1) In general. An individual is an exempt individual for a month that includes a day on which the individual is incarcerated.

(2) Incarcerated. For purposes of this section, the term incarcerated means confined, after the disposition of charges, in a jail, prison, or similar penal institution or correctional facility.

(e) Individuals with no affordable coverage—(1) In general. An individual is an exempt individual for a month in which the individual lacks affordable coverage. For purposes of this paragraph (e), an individual lacks affordable coverage in a month if the individual's required contribution (determined on an annual basis) for minimum essential coverage for the month exceeds the required contribution percentage (as defined in paragraph (e)(2) of this section) of the individual's household income. For purposes of this paragraph (e), an individual's household income is increased by any amount of the required contribution made through a salary reduction arrangement that is excluded from gross income.

(2) Required contribution percentage—(i) In general. Except as provided in paragraph (e)(2)(ii) of this section, the required contribution percentage is 8 percent.

(ii) Indexing. For plan years beginning in any calendar year after 2014, the required contribution percentage is the percentage determined by the Department of Health and Human Services that reflects the excess of the rate of premium growth between the preceding calendar year and 2013 over the rate of income growth for the period.

(iii) Plan year. For purposes of this paragraph (e), plan year means the eligible employer-sponsored plan's regular 12-month coverage period, or for a new employee or an individual who enrolls during a special enrollment period, the remainder of a 12-month coverage period.

(3) Individuals eligible for coverage under eligible employer-sponsored plans—(i) Eligibility—(A) In general. Except as provided in paragraph (e)(3)(i)(B) of this section, an employee or related individual (as defined in paragraph (e)(3)(ii)(B) of this section) is treated as eligible for coverage under an eligible employer-sponsored plan for a month during a plan year if the employee or related individual could have enrolled in the plan for any day in that month during an open or special enrollment period, regardless of whether the employee or related individual is eligible for any other type of minimum essential coverage.

(B) Multiple eligibility. For purposes of this paragraph (e)(3), an employee eligible for coverage under an eligible employer-sponsored plan offered by the employee's employer is not treated as eligible as a related individual for coverage under an eligible employer-sponsored plan (for example, an eligible employer-sponsored plan offered by the employer of the employee's spouse) for any month included in the plan year of the eligible employer-sponsored plan offered by the employee's employer.

(C) Special rule for post-employment coverage. A former employee or an individual related to a former employee, who may enroll in continuation coverage required under Federal law or a state law that provides comparable continuation coverage, or in retiree coverage under an eligible employer-sponsored plan, is eligible for coverage under an eligible employer-sponsored plan only if the individual enrolls in the coverage.

(ii) Required contribution for individuals eligible for coverage under an eligible employer-sponsored plan—(A) Employees. In the case of an employee who is eligible to purchase coverage under an eligible employer-sponsored plan sponsored by the employee's employer, the required contribution is the portion of the annual premium that the employee would pay (whether through salary reduction or otherwise) for the lowest cost self-only coverage.

(B) Individuals related to employees. In the case of an individual who is eligible for coverage under an eligible employer-sponsored plan because of a relationship to an employee and for whom a personal exemption deduction under section 151 is claimed on the employee's Federal income tax return (related individual), the required contribution is the portion of the annual premium that the employee would pay (whether through salary reduction or otherwise) for the lowest cost family coverage that would cover the employee and all related individuals who are included in the employee's family and are not otherwise exempt under § 1.5000A-3.

(C) Required contribution for part-year period. For each individual described in paragraph (e)(3)(ii)(A) or (e)(3)(ii)(B) of this section, affordability under this paragraph (e)(3) is determined separately for each employment period that is less than a full calendar year or for the portions of an employer's plan year that fall in different taxable years of the individual. Coverage under an eligible employer-sponsored plan is affordable for a part-year period if the annualized required contribution for self-only coverage (in the case of the employee) or family coverage (in the case of a related individual) under the plan for the part-year period does not exceed the required contribution percentage of the individual's household income for the taxable year. The annualized required contribution is the required contribution determined under paragraph (e)(3)(ii)(A) or (e)(3)(ii)(B) of this section for the part-year period times a fraction, the numerator of which is 12 and the denominator of which is the number of months in the part-year period during the individual's taxable year. Only full calendar months are included in the computation under this paragraph (e)(3)(ii)(C).

(iii) Examples. The following examples illustrate the application of this paragraph (e)(3). Unless stated otherwise, in each example, each individual's taxable year is a calendar year, the individual is ineligible for any other exemptions described in this section for a month, the rate of premium growth has not exceeded the rate of income growth since 2013, and the individual's employer offers a single plan that uses a calendar plan year and is an eligible employer-sponsored plan as described in § 1.5000A-2(c).

Example 1.

Unmarried employee with no dependents. Taxpayer A is an unmarried individual with no dependents. In November 2015, A is eligible to enroll in self-only coverage under a plan offered by A's employer for calendar year 2016. If A enrolls in the coverage, A is required to pay $5,000 of the total annual premium. In 2016, A's household income is $60,000. Under paragraph (e)(3)(ii)(A) of this section, A's required contribution is $5,000, the portion of the annual premium A pays for self-only coverage. Under paragraph (e)(1) of this section, A lacks affordable coverage for 2016 because A's required contribution ($5,000) is greater than 8% of A's household income ($4,800).

Example 2.

Married employee with dependents. Taxpayers B and C are married and file a joint return for 2016. B and C have two children, D and E. In November 2015, B is eligible to enroll in self-only coverage under a plan offered by B's employer for calendar year 2016 at a cost of $5,000 to B. C, D, and E are eligible to enroll in family coverage under the same plan for 2016 at a cost of $20,000 to B. B, C, D, and E's household income for 2016 is $90,000. Under paragraph (e)(3)(ii)(A) of this section, B's required contribution is B's share of the cost for self-only coverage, $5,000. Under paragraph (e)(1) of this section, B has affordable coverage for 2016 because B's required contribution ($5,000) does not exceed 8% of B's household income ($7,200). Under paragraph (e)(3)(ii)(B) of this section, the required contribution for C, D, and E is B's share of the cost for family coverage, $20,000. Under paragraph (e)(1) of this section, C, D, and E lack affordable coverage for 2016 because their required contribution ($20,000) exceeds 8% of their household income ($7,200).

Example 3.

Plan year is a fiscal year. (i) Taxpayer F is an unmarried individual with no dependents. In June 2015, F is eligible to enroll in self-only coverage under a plan offered by F's employer for the period July 2015 through June 2016 at a cost to F of $4,750. In June 2016, F is eligible to enroll in self-only coverage under a plan offered by F's employer for the period July 2016 through June 2017 at a cost to F of $5,000. In 2016, F's household income is $60,000.

(ii) Under paragraph (e)(3)(ii)(C) of this section, F's annualized required contribution for the period January 2016 through June 2016 is $4,750 ($2,375 paid for premiums in 2016 × 12/6). Under paragraph (e)(1) of this section, F has affordable coverage for January 2016 through June 2016 because F's annualized required contribution ($4,750) does not exceed 8% of F's household income ($4,800).

(iii) Under paragraph (e)(3)(ii)(C) of this section, F's annualized required contribution for the period July 2016 to December 2016 is $5,000 ($2,500 paid for premiums in 2016 × 12/6). Under paragraph (e)(1) of this section, F lacks affordable coverage for July 2016 through December 2016 because F's annualized required contribution ($5,000) exceeds 8% of F's household income ($4,800).

Example 4.

Eligibility for coverage under an eligible employer-sponsored plan and under government sponsored coverage. Taxpayer G is unmarried and has one child, H. In November 2015, H is eligible to enroll in family coverage under a plan offered by G's employer for 2016. H is also eligible to enroll in the CHIP program for 2016. Under paragraph (e)(3)(i) of this section, H is treated as eligible for coverage under an eligible employer-sponsored plan for each month in 2016, notwithstanding that H is eligible to enroll in government sponsored coverage for the same period.

(4) Individuals ineligible for coverage under eligible employer-sponsored plans—(i) Eligibility for coverage other than an eligible employer-sponsored plan. An individual is treated as ineligible for coverage under an eligible employer-sponsored plan for a month that is not described in paragraph (e)(3)(i) of this section.

(ii) Required contribution for individuals ineligible for coverage under eligible employer-sponsored plans—(A) In general. In the case of an individual who is ineligible for coverage under an eligible employer-sponsored plan, the required contribution is the premium for the applicable plan, reduced by the maximum amount of any credit allowable under section 36B for the taxable year, determined as if the individual was covered for the entire taxable year by a qualified health plan offered through the Exchange serving the rating area where the individual resides.

(B) Applicable plan—(1) In general. Except as provided in paragraph (e)(4)(ii)(B)(2) of this section, applicable plan means the single lowest cost bronze plan available in the individual market through the Exchange serving the rating area in which the individual resides (without regard to whether the individual purchased a qualified health plan through the Exchange) that would cover all individuals in the individual's nonexempt family. For purposes of this paragraph (e)(4), an individual's nonexempt family means the family (as defined in § 1.5000A-1(d)(4)) that includes the individual, excluding any family members who are otherwise exempt under section 1.5000A-3 or are treated as eligible for coverage under an eligible employer-sponsored plan under paragraph (e)(3)(i) of this section. The premium for the applicable plan takes into account rating factors (for example, an individual's age or tobacco use) that an Exchange would use to determine the cost of coverage.

(2) Lowest cost bronze plan does not cover all individuals included in the taxpayer's nonexempt family—(i) In general. If the Exchange serving the rating area where the individual resides does not offer a single bronze plan covering all individuals included in the individual's nonexempt family, the premium for the applicable plan is the sum of the premiums for the lowest cost bronze plans that are offered through the Exchanges serving the rating areas where one or more of the individuals reside that would cover in the aggregate all the individuals in the individual's nonexempt family. For instance, coverage offered through the Exchange in a rating area might not cover a family member living in different rating area or a single policy might not cover all the members in a taxpayer's household.

(C) Credit allowable under section 36B. For purposes of paragraph (e)(4)(ii)(A) of this section, maximum amount of any credit allowable under section 36B means the maximum amount of the credit that would be allowable to the individual, or to the taxpayer who can properly claim the individual as a dependent, under section 36B if all members of the individual's nonexempt family enrolled in a qualified health plan through the Exchange serving the rating area where the individual resides.

(D) Required contribution for part-year period. For each individual described in paragraph (e)(4)(ii)(A) of this section, affordability under paragraph (e)(4) of this section is determined separately for each period described in paragraph (e)(4)(ii)(E) of this section that is less than a 12-month period. Coverage under a plan is affordable for a part-year period if the annualized required contribution for coverage under the plan for the part-year period does not exceed the required contribution percentage of the individual's household income for the taxable year. The annualized required contribution is the required contribution determined under paragraph (e)(4)(ii)(A) of this section for the part-year period times a fraction, the numerator of which is 12 and the denominator of which is the number of months in the part-year period during the individual's taxable year. Only full calendar months are included in the computation under this paragraph (e)(4)(ii)(D).

(iii) Examples. The following examples illustrate the provisions of this paragraph (e)(4). Unless stated otherwise, in each example the taxpayer's taxable year is a calendar year, the rate of premium growth has not exceeded the rate of income growth since 2013, and the taxpayer is ineligible for any of the exemptions described in paragraphs (b) through (i) of this section for a month.

Example 1.

Unmarried employee with no dependents. (i) Taxpayer G is an unmarried individual with no dependents. G is ineligible to enroll in any minimum essential coverage other than coverage in the individual market for all months in 2016. The annual premium for the lowest cost bronze self-only plan in G's rating area (G's applicable plan) is $5,000. The adjusted annual premium for the second lowest cost silver self-only plan in G's rating area (G's applicable benchmark plan within the meaning of § 1.36B-3(f)) is $5,500. In 2016 G's household income is $40,000, which is 358% of the Federal poverty line for G's family size for the taxable year.

(ii) Under paragraph (e)(4)(ii)(C) of this section, the credit allowable under section 36B is determined pursuant to section 36B. With household income at 358% of the Federal poverty line, G's applicable percentage is 9.5. Because each month in 2016 is a coverage month (within the meaning of § 1.36B-3(c)), G's maximum credit allowable under section 36B is the excess of G's premium for the applicable benchmark plan over the product of G's household income and G's applicable percentage ($1,700). Therefore, under paragraph (e)(4)(ii)(A) of this section, G's required contribution is $3,300. Under paragraph (e)(1) of this section, G lacks affordable coverage for 2016 because G's required contribution ($3,300) exceeds 8% of G's household income ($3,200).

Example 2.

Family. (i) In 2016 Taxpayers M and N are married and file a joint return. M and N have two children, P and Q. M, N, P, and Q are ineligible to enroll in minimum essential coverage other than coverage in the individual market for a month in 2016. The annual premium for M, N, P, and Q's applicable plan is $20,000. The adjusted annual premium for M, N, P, and Q's applicable benchmark plan (within the meaning of § 1.36B-3(f)) is $25,000. M and N's household income is $80,000, which is 347% of the Federal poverty line for a family size of 4 for the taxable year.

(ii) Under paragraph (e)(4)(ii)(C) of this section, the credit allowable under section 36B is determined pursuant to section 36B. With household income at 347% of the Federal poverty line, the applicable percentage is 9.5. Because each month in 2016 is a coverage month (within the meaning of § 1.36B-3(c)), the maximum credit allowable under section 36B is the excess of the premium for the applicable benchmark plan over the product of the household income and the applicable percentage ($17,400). Therefore, under paragraph (e)(4)(ii)(A) of this section, the required contribution for M, N, P, and Q is $2,600. Under paragraph (e)(1) of this section, M, N, P, and Q have affordable coverage for 2016 because their required contribution ($2,600) does not exceed 8% of their household income ($6,400).

Example 3.

Family with some members eligible for government-sponsored coverage. (i) In 2016 Taxpayers U and V are married and file a joint return. U and V have two children, W and X. U and V are ineligible to enroll in minimum essential coverage other than coverage in the individual market for all months in 2016; however, W and X are eligible for coverage under CHIP for 2016. The annual premium for U, V, W, and X's applicable plan is $20,000. The adjusted annual premium for the second lowest cost silver plan that would cover U and V (the applicable benchmark plan within the meaning of § 1.36B-3(f)) is $12,500. U and V's household income is $50,000, which is 217% of the Federal poverty line for a family size of 4 for the taxable year. W and X do not enroll in CHIP coverage.

(ii) Under paragraph (e)(4)(ii)(C) of this section, the credit allowable under section 36B is determined pursuant to section 36B. With household income at 217% of the Federal poverty line, the applicable percentage is 6.89. Each month in 2016 is a coverage month (within the meaning of § 1.36B-3(c)) for U and V, but no months in 2016 are coverage months for W and X because they are eligible for CHIP coverage. The maximum credit allowable under section 36B is the excess of the premium for the applicable benchmark plan over the product of the household income and the applicable percentage ($9,055). Therefore, under paragraph (e)(4)(ii)(A) of this section, the required contribution is $10,945. Under paragraph (e)(1) of this section, U, V, W, and X lack affordable coverage for 2016 because their required contribution ($10,945) exceeds 8% of their household income ($4,000).

Example 4.

Family with some members enrolled in government-sponsored minimum essential coverage. The facts are the same as Example 3, except W and X enroll in CHIP coverage on January 1, 2016. Under paragraph (e)(4)(ii)(B), U, V, W, and X are members of U and V's nonexempt family for 2016. Therefore, the annual premium for the applicable plan is the same as in Example 3 ($20,000). The maximum credit allowable under section 36B is also the same as in Example 3 ($9,055). Under paragraph (e)(4)(ii)(A) of this section, the required contribution is $10,945. Under paragraph (e)(1) of this section, U and V lack affordable coverage for 2016 because their required contribution ($10,945) exceeds 8% of their household income ($4,000).

(f) Household income below filing threshold—(1) In general. An individual is an exempt individual for any taxable year for which the individual's household income is less than the applicable filing threshold.

(2) Applicable filing threshold—(i) In general. For purposes of this section, applicable filing threshold means the amount of gross income that would trigger an individual's requirement to file a Federal income tax return under section 6012(a)(1).

(ii) Certain dependents. The applicable filing threshold for an individual who is properly claimed as a dependent by another taxpayer is equal to the other taxpayer's applicable filing threshold.

(3) Manner of claiming the exemption. A taxpayer is not required to file a Federal income tax return solely to claim the exemption described in this paragraph (f). If a taxpayer has a household income below the applicable filing threshold and nevertheless files a Federal income tax return, the taxpayer may claim the exemption described in this paragraph (f) on the return.

(g) Members of Indian tribes. An individual is an exempt individual for a month that includes a day on which the individual is a member of an Indian tribe. For purposes of this section, Indian tribe means a group or community described in section 45A(c)(6).

(h) Individuals with hardship exemption certification—(1) In general. An individual is an exempt individual for a month that includes a day on which the individual has in effect a hardship exemption certification described in paragraph (h)(2) of this section.

(2) Hardship exemption certification. A hardship exemption certification is issued by an Exchange under section 1311(d)(4)(H) of the Affordable Care Act (42 U.S.C. 18031(d)(4)(H)), 45 CFR 155.605(g)(1), (g)(2), (g)(4) and (g)(6), 45 CFR 155.610(i), and 45 CFR 155.615(f), and certifies that an individual has suffered a hardship (as that term is defined in 45 CFR 155.605(g)) affecting the capability to obtain minimum essential coverage.

(3) Hardship exemptions that may be claimed on a return. A taxpayer who meets the requirements of 45 CFR 155.605(g)(3) or 45 CFR 155.605(g)(5) may claim a hardship exemption for a calendar year on a Federal income tax return.

(i) [Reserved]

(j) Individuals with certain short coverage gaps—(1) In general. An individual is an exempt individual for a month the last day of which is included in a short coverage gap.

(2) Short coverage gap—(i) In general. Short coverage gap means a continuous period of less than three months in which the individual is not covered under minimum essential coverage. If the individual does not have minimum essential coverage for a continuous period of three or more months, none of the months included in the continuous period are treated as included in a short coverage gap.

(ii) Coordination with other exemptions. For purposes of this paragraph (j), an individual is treated as having minimum essential coverage for a month in which an individual is exempt under any of paragraphs (a) through (h) of this section.

(iii) More than one short coverage gap during calendar year. If a calendar year includes more than one short coverage gap, the exemption provided by this paragraph (j) only applies to the earliest short coverage gap.

(3) Continuous period—(i) In general. Except as provided in paragraph (j)(3)(ii) of this section, the number of months included in a continuous period is determined without regard to the calendar years in which months included in that period occur. For purposes of paragraph (j) of this section, a continuous period begins no earlier than January 1, 2014.

(ii) Continuous period straddling more than one taxable year. If an individual does not have minimum essential coverage for a continuous period that begins in one taxable year and ends in the next, for purposes of applying this paragraph (j) to the first taxable year, the months in the second taxable year included in the continuous period are disregarded. For purposes of applying this paragraph (j) to the second taxable year, the months in the first taxable year included in the continuous period are taken into account.

(4) Examples. The following examples illustrate the provisions of this paragraph (j). Unless stated otherwise, in each example the taxpayer's taxable year is a calendar year and the taxpayer is ineligible for any of the exemptions described in paragraphs (a) through (h) of this section for a month.

Example 1.

Short coverage gap. Taxpayer D has minimum essential coverage in 2016 from January 1 through March 2. After March 2, D does not have minimum essential coverage until D enrolls in an eligible employer-sponsored plan effective June 15. Under § 1.5000A-1(b), for purposes of section 5000A, D has minimum essential coverage for January, February, March, and June through December. D's continuous period without coverage is 2 months, April and May. April and May constitute a short coverage gap under paragraph (j)(2)(i) of this section.

Example 2.

Continuous period of 3 months or more. The facts are the same as in Example 1, except D's coverage is not effective until July 1. D's continuous period without coverage is 3 months, April, May, and June. Under paragraph (j)(2)(i) of this section, April, May, and June are not included in a short coverage gap.

Example 3.

Short coverage gap following exempt period. Taxpayer E is incarcerated from January 1 through June 2. E enrolls in an eligible employer-sponsored plan effective September 15. Under paragraph (d) of this section, E is exempt for the period January through June. Under paragraph (j)(2)(ii) of this section, E is treated as having minimum essential coverage for this period, and E's continuous period without minimum essential coverage is 2 months, July and August. July and August constitute a short coverage gap under paragraph (j)(2)(i) of this section.

Example 4.

Continuous period covering more than one taxable year. Taxpayer F, an unmarried individual with no dependents, has minimum essential coverage for the period January 1 through October 15, 2016. F is without coverage until February 15, 2017. F files his Federal income tax return for 2016 on March 10, 2017. Under paragraph (j)(3)(ii) of this section, November and December of 2016 are treated as a short coverage gap. However, November and December of 2016 are included in the continuous period that includes January 2017. The continuous period for 2017 is not less than 3 months and, therefore, January is not a part of a short coverage gap.

Example 5.

Enrollment following loss of coverage. The facts are the same as in Example 4 except F loses coverage on June 15, 2017. F enrolls in minimum essential coverage effective September 15, 2017. The continuous period without minimum essential coverage in July and August of 2017 is two months and, therefore, is a short coverage gap. Because January 2017 was not part of a short coverage gap, the earliest short coverage gap occurring in 2017 is the gap that includes July and August.

Example 6.

Multiple coverage gaps. (i) The facts are the same as in Example 5 except F has minimum essential coverage for November 2016. Under paragraph (j)(3)(ii) of this section, December 2016 is treated as a short coverage gap.

(ii) December 2016 is included in the continuous period that includes January 2017. This continuous period is two months and, therefore, January 2017 is the earliest month in 2017 that is included in a short coverage gap. Under paragraph (j)(2)(iii) of this section, the exemption under this paragraph (j) applies only to January 2017. Thus, the continuous period without minimum essential coverage in July and August of 2017 is not a short coverage gap.

§ 1.5000A-4 Computation of shared responsibility payment.

(a) In general. For each taxable year the shared responsibility payment is the lesser of—

(1) The sum of the monthly penalty amounts for each individual in the shared responsibility family; or

(2) The sum of the monthly national average bronze plan premiums for the shared responsibility family.

(b) Monthly penalty amount—(1) In general. Monthly penalty amount means, for a month that a nonexempt individual is not covered under minimum essential coverage, 1/12 multiplied by the greater of—

(A) The sum of the applicable dollar amounts for all individuals included in the taxpayer's shared responsibility family; or

(B) 300 percent of the applicable dollar amount (determined without regard to paragraph (b)(2)(iii) of this section) for the calendar year with or within which the taxable year ends.

(ii) Applicable dollar amount. Except as provided in paragraphs (b)(2)(iii) and (b)(2)(iv) of this section, the applicable dollar amount is—

(A) $95 in 2014;

(B) $325 in 2015; or

(C) $695 in 2016.

(iii) Special applicable dollar amount for individuals under age 18. If an individual has not attained the age of 18 before the first day of a month, the applicable dollar amount for the individual is equal to one-half of the applicable dollar amount (as expressed in paragraph (b)(2)(ii) of this section) for the calendar year in which the month occurs. For purposes of this paragraph (b)(2)(iii), an individual attains the age of 18 on the anniversary of the date when the individual was born. For example, an individual born on March 1, 1999, attains the age of 18 on March 1, 2017.

(iv) Indexing of applicable dollar amount. In any calendar year after 2016, the applicable dollar amount is $695 as increased by the product of $695 and the cost-of-living adjustment determined under section 1(f)(3) for the calendar year. For purposes of this paragraph (b)(2)(iv), the cost-of-living adjustment is determined by substituting “calendar year 2015” for “calendar year 1992” in section 1(f)(3)(B). If any increase under this paragraph (b)(2)(iv) is not a multiple of $50, the increase is rounded down to the next lowest multiple of $50.

(3) Excess income amount—(i) In general. Excess income amount means the product of—

(A) The excess of the taxpayer's household income over the taxpayer's applicable filing threshold (as defined in § 1.5000A-3(f)(2)); and

(B) The income percentage.

(ii) Income percentage. For purposes of this section, income percentage means—

(A) 1.0 percent for taxable years beginning in 2013;

(B) 1.0 percent for taxable years beginning in 2014;

(C) 2.0 percent for taxable years beginning in 2015; or

(D) 2.5 percent for taxable years beginning after 2015.

(c) Monthly national average bronze plan premium. Monthly national average bronze plan premium means, for a month for which a shared responsibility payment is imposed, 1/12 of the annual national average premium for qualified health plans that have a bronze level of coverage, would provide coverage for the taxpayer's shared responsibility family members who do not have minimum essential coverage for the month, and are offered through Exchanges for plan years beginning in the calendar year with or within which the taxable year ends.

(d) Examples. The following examples illustrate the provisions of this section. In each example the taxpayer's taxable year is a calendar year and all members of the taxpayer's shared responsibility family are ineligible for any of the exemptions described in § 1.5000A-3 for a month.

Example 1.

Unmarried taxpayer without minimum essential coverage. (i) In 2016, Taxpayer G is an unmarried individual with no dependents. G does not have minimum essential coverage for any month in 2016. G's household income is $120,000. G's applicable filing threshold is $12,000. The annual national average bronze plan premium for G is $5,000.

(ii) For each month in 2016, under paragraph (b)(2)(ii) of this section, G's applicable dollar amount is $695. Under paragraph (b)(2) of this section, G's flat dollar amount is $695 (the lesser of $695 and $2,085 ($695 × 3)). Under paragraph (b)(3) of this section, G's excess income amount is $2,700 (($120,000 − $12,000) × 0.025). Therefore, under paragraph (b)(1) of this section, the monthly penalty amount is $225 (the greater of $58 ($695/12) or $225 ($2,700/12)).

(iii) The sum of the monthly penalty amounts is $2,700 ($225 × 12). The sum of the monthly national average bronze plan premiums is $5,000 ($5,000/12 × 12). Therefore, under paragraph (a) of this section, the shared responsibility payment imposed on G for 2016 is $2,700 (the lesser of $2,700 or $5,000).

Example 2.

Part-year coverage. The facts are the same as in Example 1, except G has minimum essential coverage for January through June. The sum of the monthly penalty amounts is $1,350 ($225 × 6). The sum of the monthly national average bronze plan premiums is $2,500 ($5,000/12 × 6). Therefore, under paragraph (a) of this section, the shared responsibility payment imposed on G for 2016 is $1,350 (the lesser of $1,350 or $2,500).

Example 3.

Family without minimum essential coverage. (i) In 2016, Taxpayers H and J are married and file a joint return. H and J have three children: K, age 21, L, age 15, and M, age 10. No member of the family has minimum essential coverage for any month in 2016. H and J's household income is $250,000. H and J's applicable filing threshold is $24,000. The annual national average bronze plan premium for a family of 5 (3 adults, 2 children) is $15,000.

(ii) For each month in 2016, under paragraphs (b)(2)(ii) and (b)(2)(iii) of this section, the applicable dollar amount is $2,780 (($695 × 3 adults) + (($695/2) × 2 children)). Under paragraph (b)(2)(i) of this section, the flat dollar amount is $2,085 (the lesser of $2,780 and $2,085 ($695 × 3)). Under paragraph (b)(3) of this section, the excess income amount is $5,650 (($250,000−$24,000) × 0.025). Therefore, under paragraph (b)(1) of this section, the monthly penalty amount is $470.83 (the greater of $173.75 ($2,085/12) or $470.83 ($5,650/12)).

(iii) The sum of the monthly penalty amounts is $5,650 ($470.83 × 12). The sum of the monthly national average bronze plan premiums is $15,000 ($15,000/12 × 12). Therefore, under paragraph (a) of this section, the shared responsibility payment imposed on H and J for 2016 is $5,650 (the lesser of $5,650 or $15,000).

Example 4.

Change in shared responsibility family during the year. (i) The facts are the same as in Example 3, except J has minimum essential coverage for January through June. The annual national average bronze plan premium for a family of 4 (2 adults, 2 children) is $10,000.

(ii) For the period January through June 2016, under paragraphs (b)(2)(ii) and (b)(2)(iii) of this section the applicable dollar amount is $2,085 (($695 × 2 adults) + (($695/2) × 2 children)). Under paragraph (b)(2)(i) of this section, the flat dollar amount is $2,085 (the lesser of $2,085 or $2,085 ($695 × 3)).

(iii) For the period July through December 2016, the applicable dollar amount is $2,780 (($695 × 3 adults) + (($695/2) × 2 children)). Under paragraph (b)(2) of this section, the flat dollar amount is $2,085 (the lesser of $2,780 or $2,085 ($695 × 3)). Under paragraph (b)(3) of this section, the excess income amount is $5,650 (($250,000−$24,000) × 0.025). Therefore, under paragraph (b)(1) of this section, for January through June the monthly penalty amount is $470.83 (the greater of $173.75 ($2,085/12) or $470.83 ($5,650/12)). The monthly penalty amount for July through December is $470.83 (the greater of $173.75 ($2,085/12) or $470.83 ($5,650/12)).

(iv) The sum of the monthly penalty amounts is $5,650 ($470.83 × 12). The sum of the monthly national average bronze plan premiums is $12,500 ((($10,000/12) × 6) + (($15,000/12) × 6))). Therefore, under paragraph (a) of this section, the shared responsibility payment imposed on H and J for 2016 is $5,650 (the lesser of $5,650 or $12,500).

Example 5.

Eighteenth birthday during the year. (i) In 2016 Taxpayers S and T are married and file a joint return. S and T have one child, U, who turns 18 years old on June 28. S, T, and U do not enroll in, and as a result are not eligible to receive benefits under, affordable employer-sponsored coverage offered by T's employer for 2016. S and T's household income is $60,000. S and T's applicable filing threshold is $24,000. The annual national average bronze plan premium for a family of 3 (2 adults, 1 child) is $11,000.

(ii) For the period January through June 2016, under paragraphs (b)(2)(ii) and (b)(2)(iii) of this section, the applicable dollar amount is $1,737.50 (($695 × 2 adults) + ($695/2) × 1 child)). Under paragraph (b)(2) of this section, the flat dollar amount is $1,737.50 (the lesser of $1,737.50 or $2,085 ($695 × 3)).

(iii) For the period July through December 2016, the applicable dollar amount is $2,085 ($695 × 3). Under paragraph (b)(2) of this section, the flat dollar amount is $2,085 (the lesser of $2,085 or $2,085 ($695 × 3)). Under paragraph (b)(3) of this section, the excess income amount is $900 (($60,000−$24,000) × 0.025). Therefore, under paragraph (b)(1) of this section, for January through June the monthly penalty amount is $144.79 (the greater of $144.79 ($1,737.50/12) or $75 ($900/12)). The monthly penalty amount for July through December is $173.75 (the greater of $173.75 ($2,085/12) or $75 ($900/12)).

(iv) The sum of the monthly penalty amounts is $1,911.24 (($144.79 × 6) + ($173.75 × 6)). The sum of the monthly national average bronze plan premiums is $11,000 ($11,000/12 × 12). Therefore, under paragraph (a) of this section, the shared responsibility payment imposed on H and J for 2016 is $1,911.24 (the lesser of $1,911.24 or $11,000).

§ 1.5000A-5 Administration and procedure.

(a) In general. A taxpayer's liability for the shared responsibility payment for a month must be reported on the taxpayer's Federal income tax return for the taxable year that includes the month. The period of limitations for assessing the shared responsibility payment is the same as that prescribed by section 6501 for the taxable year to which the Federal income tax return on which the shared responsibility payment is to be reported relates. The shared responsibility payment is payable upon notice and demand by the Secretary, and except as provided in paragraph (b) of this section, is assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68 of the Internal Revenue Code. The shared responsibility payment is not subject to deficiency procedures of subchapter B of chapter 63 of the Internal Revenue Code. Interest on this payment accrues in accordance with the rules in section 6601.

(b) Special rules. Notwithstanding any other provision of law—

(1) Waiver of criminal penalties. In the case of a failure by a taxpayer to timely pay the shared responsibility payment, the taxpayer is not subject to criminal prosecution or penalty for the failure.

(2) Limitations on liens and levies. If a taxpayer fails to pay the shared responsibility payment imposed by this section and §§ 1.5000A-1 through 1.5000A-4, the Secretary will not file notice of lien on any property of the taxpayer, or levy on any property of the taxpayer for the failure.

(3) Authority to offset against overpayment. Nothing in this section prohibits the Secretary from offsetting any liability for the shared responsibility payment against any overpayment due the taxpayer, in accordance with section 6402(a) and its corresponding regulations.

(c) Effective/applicability date. This section and §§ 1.5000A-1 through 1.5000A-4 apply for months beginning after December 31, 2013.

PART 602—OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACTPar. 5.The authority citation for part 602 continues to read as follows:Authority:

26 U.S.C. 7805.

Par. 6. In § 602.101, paragraph (b) is amended by adding an entry in numerical order to the table to read as follows:§ 602.101 OMB Control numbers.

The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Loop Parkway Bridge, mile 0.7, across Long Creek, and the Meadowbrook Parkway Bridge, mile 12.8, across Sloop Channel, both at Hempstead, New York. This deviation is necessary to facilitate the 2013 Dee Snider's Ride to Fight Hunger on Long Island. The deviation allows the two bridges to remain in the closed position during this public event.

DATES:

This deviation is effective from 11 a.m. through 1 p.m. on September 8, 2013.

ADDRESSES:

Documents mentioned in this preamble as being available in the docket are part of docket USCG-2013-0775 and are available online at www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation. You may also visit the Docket Management Facility in Room W12-140, on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC, 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Ms. Judy Leung-Yee, Project Officer, First Coast Guard District, telephone (212) 668-7165, judy.k.leung-yee@uscg.mil. If you have questions on viewing the docket, call Barbara Hairston, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

The Loop Parkway Bridge, mile 0.7, across Long Creek has a vertical clearance in the closed position of 21 feet at mean high water and 25 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.799(f).

The Meadowbrook Parkway Bridge, mile 12.8, across Sloop Channel has a vertical clearance in the closed position of 22 feet at mean high water and 25 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.799(h). Long Creek and Sloop Channel are transited by commercial fishing and recreational vessel traffic.

The bridge owner for both bridges, the State of New York Department of Transportation, requested bridge closures to facilitate a public event, the 2013 Dee Snider's Ride to Fight Hunger.

Under this temporary deviation the Loop Parkway and the Meadowbrook Parkway Bridges may remain in the closed position between 11 a.m. and 1 p.m. on September 8, 2013, to facilitate a public event, the 2013 Dee Snider's Ride.

There are no alternate routes for vessel traffic; however, vessels that can pass under the closed draws during this closure may do so at any time. The bridges may be opened in the event of an emergency. The Coast Guard will inform the users of the waterways through our Local and/or Broadcast Notices to Mariners of the change in operating schedule for the bridges so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Coast Guard has issued a temporary deviation from the operating schedule that governs the draw of the US40-322 (Albany Avenue) Bridge across Inside Thorofare, NJICW mile 70.0, at Atlantic City, NJ. The deviation allows the bridge to remain in the closed position to vessels requesting a bridge opening in order to accommodate the 3rd Annual Atlantic City Triathlon.

DATES:

This deviation is effective 6 a.m. until 12 p.m. September 15, 2013.

ADDRESSES:

The docket for this deviation [USCG-2013-0783] is available at http://www.regulations.gov. Type the docket number in the “Search” box and click “Search.” Click on the Open Docket Folder on the line associated with this deviation. You may also visit the Docket Management Facility in Room W12-140, on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

The New Jersey Department of Transportation, on behalf of the Atlantic City Emergency Management Office, has requested a temporary deviation from the current operating regulations of the US40-322 (Albany Avenue) Bridge across Inside Thorofare, NJICW mile 70.0, at Atlantic City. The closure has been requested to ensure the safety of the runners and spectators that will be participating in the triathlon, on Sunday September 15, 2013.

Under this temporary deviation, the US40-322 (Albany Avenue) Bridge will remain in the closed position from 6 a.m. through 12 p.m., on Sunday, September 15, 2013.

In the closed position to vessels, the available vertical clearance of this bascule bridge is approximately 10 feet, above mean high water. The current operating regulation is outlined at 33 CFR 117.733(f), which requires that on the weekdays during this time of year, the bridge shall open on signal; except that from 11 p.m. to 7 a.m., the draw need only open if at least four hours of notice is given, from 9 a.m. to 4 p.m. and from 6 p.m. to 9 p.m., the draw need only open on the hour and half hour, and from 4 p.m. to 6 p.m. the draw need not open.

Vessels that can pass under the drawbridge without an opening may do so at all times. In the event of an emergency, the drawbridge will be able to open for vessels.

The Atlantic Ocean is an alternate route for vessels with mast heights greater than 10 feet. The Coast Guard will inform the users of the waterway through our Local and Broadcast Notices to Mariners of the closure periods so that vessels can plan their transits to minimize any impact caused by the temporary deviation. At all other times during the effected period, the bridge will operate as outlined at 33 CFR 117.733(f).

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Coast Guard has issued a temporary deviation from the operating schedule that governs the SR 529 twin bridges across the Snohomish, mile 3.6, near Everett, WA. The deviation is necessary to facilitate heavy maintenance and equipment upgrades on the bridges. This deviation allows the bridges to remain in the closed position during maintenance activities.

DATES:

This deviation is effective from 12:01 a.m. on September 3, 2013 to 11:59 p.m. on October 18, 2013.

ADDRESSES:

The docket for this deviation, [USCG-2013-0677] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

The Washington State Department of Transportation (WSDOT) has requested that the SR 529 twin bridges across the Snohomish River remain closed to vessel traffic to facilitate heavy maintenance and equipment upgrades on the bridges. The SR 529 twin bridges cross the Snohomish River at mile 3.6 and provide 38 feet of vertical clearance above mean high water elevation while in the closed position. Vessels which do not require a bridge opening may continue to transit beneath the bridges during this closure period. Under normal conditions the SR 529 Bridges crossing the Snohomish River operate in accordance with 33 CFR 117.1059(c) which requires advance notification of one-hour when a bridge opening is needed. This deviation period is from 12:01 a.m. on 3 September 2013 to 11:59 p.m. on 18 October 2013. The deviation allows the SR 529 Bridges crossing the Snohomish River, to remain in the closed position and need not open for maritime traffic from 12:01 a.m. on 3 September 2013 to 11:59 p.m. on 18 October 2013. The bridges shall operate in accordance to 33 CFR 117.1059 at all other times. Waterway usage on the Snohomish River includes vessels ranging from commercial tug and barge to small pleasure craft. Mariners will be notified and kept informed of the bridges' operational status via the construction contractor performing the maintenance as well as via the Coast Guard Notice to Mariners publication and Broadcast Notice to Mariners as appropriate. The bridges will not be able to open during this maintenance activity because the lifting mechanisms will be inoperable.

In accordance with 33 CFR 117.35(e), the drawbridges must return to their regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Coast Guard is revising the operating schedule that governs the Winneconne Highway Bridge at Mile 2.4, and the Canadian National Railroad Bridge at mile 27.8, both over the Wolf River. A review of the current regulation was requested by the Wisconsin Department of Transportation (WDOT) and the Canadian National Railroad.

DATES:

This rule is effective on September 30, 2013.

ADDRESSES:

Documents mentioned in this preamble are part of docket USCG-2013-0252. To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

On May 10, 2013, we published a notice of proposed rulemaking (NPRM) entitled, “Drawbridge Operation Regulation; Wolf River, Gills Landing and Winneconne, WI” in the Federal Register (78 FR 27336). We did not receive any comments on the proposed rule. No public meeting was requested, and none was held.

B. Basis and Purpose

The Wolf River extends from its head of navigation in New London, WI and travels south to Winneconne, WI where it confluences with the Upper Fox River. The Wolf River has two drawbridges over the waterway. The Winneconne Highway Bridge at mile 2.4 is a bascule bridge that provides 70 feet horizontal clearance, 7 feet vertical clearance in the closed position, and an unlimited vertical clearance in the open position. The Canadian National Railroad Bridge at Mile 27.8 is a former swing bridge that was converted to a vertical lift bridge in 2012 that provides 56 feet horizontal clearance, 7 feet vertical clearance in the closed position, and a vertical clearance of 16 feet in the raised position. Marine traffic on the waterway consists of small commercial vessels, and both power and sail recreational vessels. The existing drawbridge regulation for Wolf River, 33 CFR 117.1107, includes only the Winneconne Highway Drawbridge and requires the bridge to open on signal; except from 11 p.m. to 7 a.m., between May 1 and October 31, the bridge will open if at least two hours advance notice is provided, and from November 1 through April 30, the bridge will open if at least 12-hours advance notice is provided. The Coast Guard has been advised of updated navigation needs on Wolf River, including reports there has been an increase in recreational vessel usage of the waterway due to improvements to the lock system, dredging projects, and restored drawbridges over the Fox River that connect directly with the Wolf River. This rule will establish consistent operating schedules that will meet the needs of current and future navigation on the Wolf River and provide consistency in regulations for the rest of the connecting waterways.

C. Discussion of Comments, Changes and the Final Rule

The existing regulation for Wolf River (33 CFR 117.1107) addresses only one of the two drawbridges over Wolf River, and has not been revised since the overall recodification of federal drawbridge regulations in 1984.

This rule was developed in conjunction with locally applied bridge schedules implemented by WDOT and Fox River Valley Navigation Authority for the past 10 to 15 years. These agencies, along with Canadian National Railroad, have reviewed and approved this rule.

The current regulation does not include the Canadian National Railroad Bridge. The Canadian National Railroad Bridge is in a remote location and the only access to the bridge by the drawtender is by boat. Bridge logs were not available for review. The Coast Guard has coordinated with local stakeholders and the Fox River Valley Navigation Authority and determined a 6-hour advance notice for the Canadian National Railroad Bridge from April 20 to October 15 would meet the needs of current navigation. A 12-hour advance notice from October 16 to April 19 would be required for openings.

Currently, the Winneconne Bridge opens on signal between the hours of 7 a.m. and 11 p.m., daily, and requires a 2-hour advance notice of arrival for openings from May 1 to October 31 between the hours of 11 p.m. to 7 a.m., daily. From November 1 to April 30 mariners are required to provide a 12-hour advance notice for openings. WDOT has operated the Winneconne Highway Bridge during the navigation season in recent years from April 20 to October 7, with 2-hours advance notice between midnight and 8 a.m. Slight adjustments to this schedule were made in the development of this rule. Bridge openings will occur on signal from April 20 through October 15, except from midnight to 8 a.m. when 2-hours advance notice is required for openings, and from October 16 through April 19 if a 12-hour advance notice is received. No comments were received to the NPRM and this final rule adopts the proposed rule without changes.

D. Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.

1. Regulatory Planning and Review

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. This rule incorporates the locally applied bridge schedules that have been employed in recent years, with only small variations. The schedule was reviewed and approved by the bridge owners and representatives of local boating organizations. This rule is expected to improve access to the waterway and establish operating regulations that meet the needs of the boating public in an easy to read language.

2. Impact on Small Entities

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard did not receive any comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: the owners or operators of vessels needing to transit the Winneconne Bridge from midnight to 8 a.m. will need to provide a 2-hour advance notice of arrival for bridge openings, and at all hours a 6-hour advance notice for openings at the Canadian National Railroad Bridge. These operating hours would affect both drawbridges throughout the boating season from April 20 to October 15. Impacts to small entities are not expected to be significant as these schedules have effectively been in place for numerous years and are accepted by local vessel operators. During the winter when the waterway is typically ice covered, mariners will be required to provide a 12-hour advance notice for openings for both bridges, as applicable.

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT, above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

4. Collection of Information

This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

6. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

7. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

11. Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

12. Energy Effects

This rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule revises existing operating regulations or procedures for drawbridges. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction.

Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

List of Subjects in 33 CFR Part 117

Bridges.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

PART 117—DRAWBRIDGE OPERATION REGULATIONS1. The authority citation for part 117 continues to read as follows:Authority:

(a) The draw of the Winneconne Highway bridge, mile 2.4 at Winneconne, shall open on signal; except that, between the hours of midnight and 8 a.m., from April 20 through October 15, at least 2-hours of advance notice is required, and from October 16 through April 19, at least 12-hours of advance notice is required. Advance notice shall be provided to the Winnebago County Highway Department.

(b) The draw of the Canadian National Railroad Bridge, mile 27.8 at Gill's Landing, shall open on signal if at least 6-hours advance notice is provided from April 20 through October 15, and if at least 12-hours advance notice is provided from October 16 through April 19.

The Coast Guard is establishing a regulated navigation area (RNA) on the navigable waters of the Kennebec River surrounding the Maine Kennebec Bridge between Richmond, ME, and Dresden, ME. This RNA allows the Coast Guard to enforce speed and wake restrictions and prohibit all vessel traffic through the RNA during bridge replacement operations, both planned and unforeseen, that could pose an imminent hazard to persons and vessels operating in the area. This rule is necessary to provide for the safety of life on the navigable waters during the replacement of the bridge. The Coast Guard is issuing this temporary rule due to the exigent circumstances and invites comments to modify or amend the rule as necessary.

DATES:

This rule is effective and will be enforced from September 1, 2013, through December 31, 2016.

Comments and related material may be received by the Coast Guard through the effective period.

Requests for public meetings must be received by the Coast Guard on or before September 20, 2013.

ADDRESSES:

Documents mentioned in this preamble are part of Docket Number USCG-2013-0329. To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on “Open Docket Folder” on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

You may submit comments, identified by docket number, using any one of the following methods:

See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for further instructions on submitting comments. To avoid duplication, please use only one of these three methods.

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

1. Submitting Comments

If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at http://www.regulations.gov, or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

2. Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number (USCG-2013-0329) in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

3. Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

4. Public Meeting

We currently do not plan to hold a public meeting. You may, however, submit a request for one, using one of the methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid in this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

B. Regulatory History and Information

The Coast Guard is issuing this temporary interim rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing an NPRM would be impracticable for the reasons described below. The Coast Guard will consider comments in issuing a subsequent temporary interim rule or temporary final rule.

On April 26, 2013, Coast Guard conducted a meeting with the Maine Department of Transportation (MEDOT) to discuss the Maine Kennebec Bridge. During that meeting, the Coast Guard was informed that the contract for construction and demolition of the bridge was out to bid and work was expected to start September 1, 2013. This late submission did not give the Coast Guard enough time to publish an NPRM, take public comments, and issue a final rule before work begins in September 2013.

It would be impracticable to delay promulgating this rule, as work is scheduled to begin on September 1, 2013, as it is necessary to protect the safety of both the construction crew and the waterway users operating in the vicinity of the bridge construction zone. A delay or cancellation of the currently ongoing bridge rehabilitation project in order to accommodate a full notice and comment period would delay necessary operations, result in increased costs, and delay the date when the bridge is expected to reopen for normal operations. The Coast Guard believes it would be impracticable to delay this regulation. At any time, the Coast Guard may publish an amended rule if necessary to address public concerns.

For the same reasons mentioned above, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

C. Basis and Purpose

Under the Ports and Waterways Safety Act, 33 U.S.C. 1221 et. seq., and Department of Homeland Security Delegation No. 0170.1, the Coast Guard has the authority to establish RNAs in defined water areas that are determined to have hazardous conditions and in which vessel traffic can be regulated in the interest of safety.

This rulemaking is prompted by the navigation safety situation created by demolition and subsequent reconstruction of the Maine Kennebec Bridge. The Coast Guard has discussed this project with MEDOT to determine whether the project can be completed without channel closures. While the majority of construction activities during the span of this project will not require waterway closures, there are certain tasks that can only be completed in the channel and will require closing the waterway. The demolition and construction of the bridge will be extremely complex and presents many safety hazards including overhead crane operations, overhead cutting operations, potential falling debris, and barges positioned in the channel with a restricted ability to maneuver. At present, MEDOT has not submitted a plan for waterway closures as the bridge contract is still under negotiation.

The purpose of this rulemaking is to provide for safety on the navigable waters in the regulated area during bridge reconstruction.

D. Discussion of the Interim Rule

The Coast Guard is establishing an RNA on the navigable waters of the Kennebec River surrounding the Maine Kennebec River Bridge which spans from Richmond to Dresden, ME. This RNA allows the Captain of the Port Sector Northern New England (COTP) to establish speed and wake restrictions and to prohibit vessel traffic on this portion of the river for limited periods when necessary for the safety of vessels and workers during construction work in the channel. The Coast Guard will enforce a six knot speed limit as well as a “NO WAKE” zone and will be able to close the designated area to all vessel traffic under any circumstances, planned or unforeseen, that pose an imminent threat to waterway users or construction operations in the area. Complete waterway closures will be minimized to that period absolutely necessary and made with as much advanced notice as possible. During closures, mariners may request permission from the COTP to transit through the RNA.

Entry into, anchoring, or movement within this RNA during a closure is prohibited unless authorized by the COTP or a designated representative.

If the project is completed before December 31, 2016, the COTP will suspend enforcement of the RNA. The COTP will ensure that any notice of the suspension of enforcement reaches affected segments of the public by all appropriate means. Such means of notification could include, but would not be limited to, Broadcast Notice to Mariners and Local Notice to Mariners.

E. Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

1. Regulatory Planning and Review

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

The Coast Guard determined that this rulemaking will not be a significant regulatory action for the following reasons: vessel traffic will only be restricted from the RNA for limited durations and the RNA covers only a small portion of the navigable waterway. Advanced public notifications will also be made to local mariners through appropriate means, which could include, but would not be limited to, Local Notice to Mariners and Broadcast Notice to Mariners. Finally, during closures, mariners may request permission from the COTP to transit through the RNA.

2. Impact on Small Entities

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter or transit within the RNA during a vessel restriction period.

The RNA will not have a significant economic impact on a substantial number of small entities for the following reasons: the RNA would be of limited size and any waterway closure of short duration. Additionally before the effective period of a waterway closure, advanced public notifications will be made to local mariners through appropriate means, which could include, but would not be limited to, Local Notice to Mariners and Broadcast Notice to Mariners.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT, above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

4. Collection of Information

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

6. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “For Further Information Contact” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

7. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

11. Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

12. Energy Effects

This rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

13. Technical Standards

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves restricting vessel movement within a regulated navigation area. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

(a) Location. The following area is a Regulated Navigation Area (RNA): All navigable waters, surface to bottom, on the Kennebec River within a 300 yard radius of position 44°05'27” N, 069°46'57” W in the vicinity of the Maine Kennebec River Bridge between Richmond, ME and Dresden, ME.

(b) Regulations. (1) The general regulations contained in 33 CFR 165.11 and 165.13 apply within the RNA.

(2) In accordance with the general regulations, entry into or movement within this zone, during periods of enforcement, is prohibited unless authorized by the COTP Sector Northern New England.

(3) Persons and vessels may request permission to enter the RNA during periods of enforcement by contacting the COTP or the COTP's on-scene representative on VHF-16 or via phone at 207-767-0303.

(4) During periods of enforcement, a speed limit of six (6) knots will be in effect within the regulated area. All vessels must proceed through the area with caution and operate in such a manner as to produce no wake.

(5) Vessels must comply with all directions given to them by the COTP or the COTP's on-scene representative. The “on-scene representative” of the COTP is any Coast Guard commissioned, warrant or petty officer who has been designated by the COTP to act on the COTP's behalf. The on-scene representative may be on a Coast Guard vessel; Maine State Police, Maine Marine Patrol or other designated craft; or may be on shore and communicating with vessels via VHF-FM radio or loudhailer. Members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.

(6) Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light or other means, the operator of the vessel must proceed as directed.

(7) All other relevant regulations, including but not limited to the Rules of the Road (33 CFR part 84—Subchapter E, Inland Navigational Rules) remain in effect within the regulated area and must be strictly followed at all times.

(c) Enforcement Period. This regulation is enforceable 24 hours a day from 5:00 a.m. on September 1, 2013 until 11:59 p.m. on December 31, 2016.

(1) Prior to commencing or suspending enforcement of this regulation, the COTP will give notice by appropriate means to inform the affected segments of the public, to include dates and times. Such means of notification will include constructive notice by publication in the Federal Register, actual notice, as well as Broadcast Notice to Mariners and Local Notice to Mariners.

(2) Violations of this RNA may be reported to the COTP at 207-767-0303 or on VHF-Channel 16.

The Coast Guard is amending its regulation establishing security zones that are enforceable in connection with the arrival or departure of international leaders for United Nations meetings in New York, NY. This rule establishes new regulated navigation areas, modifies certain security zones, and better organizes the regulation. The amendments will assist the Coast Guard in protecting public safety and visiting dignitaries during these events, and thus promote the Coast Guard's maritime safety and maritime security missions.

DATES:

This rule is effective September 30, 2013.

ADDRESSES:

Documents mentioned in this preamble are part of docket [USCG-2012-0202]. To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

On September 11, 2012, we published a notice of proposed rulemaking (NPRM) entitled “Security Zones; Dignitary Arrival/Departure and United Nations Meetings, New York, NY” in the Federal Register (77 FR 55777). We received seven comments on the NPRM.

After publication of the NPRM we determined that an RNA is the more appropriate means to regulate the movement of vessels or individuals instead of the security zones originally proposed or already codified at 33 CFR 165.164. On April 19, 2013, we published a supplemental notice of proposed rulemaking (SNPRM) entitled “Regulated Navigation Areas, Security Zones: Dignitary Arrival/Departure and United Nations Meetings, New York, NY in the Federal Register (78 FR 23515). We received one comment on the SNPRM.

On five occasions since March 2011, the United States Secret Service has requested that the Coast Guard establish a temporary security zone on the waters of the East River and Bronx Kill during the arrival and departure of the President of the United States to and from Randalls and Wards Islands, New York.

This regulation carries out three related actions: (1) Establishes new regulated navigation areas in the waters near the United Nations (UN) during UN visits by international leaders; (2) revises the Wall Street Heliport security zone to identify the northern boundary of the security zone on the Manhattan shoreline at Wall Street, which is necessary due to the removal of Pier 13 that is currently referenced in 33 CFR 165.164(a)(1); and (3) revises the United Nations security zone to clarify enforcement times for the security zone, provide a more detailed description of the security zone, and provide a better understanding of the transit restrictions that would be enacted.

C. Discussion of Comments, Changes and the Final Rule

After publication of the SNPRM in the Federal Register (78 FR 23515) the National Oceanic and Atmospheric Administration (NOAA) submitted a comment recommending that 33 CFR 165.164(a)(4) be revised to state the United Nations Security Zone extends about 180 yards offshore of Manhattan instead of the currently published 175 yards. This recommendation only changes the description of the security zone's boundaries without changing its geographical coordinates. The Coast Guard agrees and has made this change to the final rule.

The Coast Guard is amending the existing security zone regulation relating to the arrival and departure of dignitaries for UN meetings in New York City, 33 CFR 165.164. Our amendments are substantively similar to the proposals contained in our 2012 NPRM, but we are reorganizing and making a non-substantive revision of § 165.164, and we are redesignating three existing security zones as regulated navigation areas. Please see the NPRM for a further discussion of how we have enforced § 165.164 security zones in the past. We have now determined that an RNA is the more appropriate means to regulate the movement of vessels or individuals instead of the security zones originally proposed or already codified at 33 CFR 165.164. We are designating the Wall Street Heliport, Randalls and Wards Islands, and United Nations Full River Closure security zones as RNAs. The Marine Air Terminal, United Nations, and United Nations West Channel Closure security zones will remain designated as security zones as they do not completely restrict vessel traffic on that portion of the Bowery Bay and East River during enforcement of the security zones.

We are reorganizing § 165.164 and adding descriptive designations to name each of the several locations covered by that regulation.

We are revising § 165.164(a)(1) relating to the Wall Street Heliport. We are removing a reference to Pier 13, which no longer exists, but otherwise the boundaries of the designated area will not change. The existing security zone is now designated a regulated navigation area.

We are adding a new § 165.164(a)(2) and establishing an RNA on the waters of the East River and Bronx Kill in the vicinity of Randalls and Wards Islands. The RNA is approximately 2,150 yards long and 860 yards wide, and encompasses approximately 0.21 square nautical miles. It will be enforced from 30 minutes before a dignitary's arrival until 15 minutes after the dignitary's departure from the area.

We are making no changes to § 165.164(a)(3), other than to designate it as the Marine Air Terminal, La Guardia Airport Security Zone.

We are designating the security zone created by § 165.164(a)(4) as the United Nations Security Zone, and we are rewording the description of this zone's boundaries for clarity, without changing its geographical coordinates. In new paragraph (d), we state that this zone is in force at all times.

We are transferring the security zone described in existing § 165.164(a)(5) to paragraph (a)(6), and designating it the United Nations Full River Closure RNA. The content of existing paragraph (a)(6) is addressed in new paragraph (d). When enforced, the UN Full River Closure RNA will fully close the East River to vessel traffic within its boundaries. We are creating a new security zone in paragraph (a)(5), to be designated the United Nations West Channel Closure Security Zone. When in force, it will close only a portion of the western channel of the river. Vessels capable of transiting the shallower waters of the eastern channel can do so.

The content of existing paragraph (a)(7) is addressed in new paragraph (d).

We are adding a new § 165.164(b) to define terms used in the regulation. The content of existing paragraph (b) is being moved to paragraph (c).

We are adding a new § 165.164(d) to describe how and when each regulated navigation area or security zone will be enforced, and how the public will be notified that enforcement is in effect.

Finally, we are adding a new § 165.164(e) to describe how vessel operators may obtain permission to enter or operate within a regulated navigation area or security zone.

D. Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

1. Regulatory Planning and Review

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

This determination is based on the limited time that vessels will be restricted from the Randalls and Wards Islands RNA. The RNA will be activated for approximately 60 minutes approximately six times per year or when necessary. The Coast Guard expects minimal adverse impact to mariners from the RNA's activation based on the limited duration of the enforcement period, the limited geographic area affected and because affected mariners may request authorization from the COTP or the designated on-scene representative to transit the RNA.

2. Impact on Small Entities

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received zero comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in a portion of the East River or Bronx Kill, in the vicinity of Randalls or Wards Islands, NY during the enforcement periods.

These RNAs will not have a significant economic impact on a substantial number of small entities for the following reasons: The RNA is of limited size and duration. Persons or vessels may request permission to transit the RNA from the COTP or the designated on-scene representative.

Additionally, before and during the enforcement period, the Coast Guard will issue maritime advisories widely available to users of the waterway, including marine information broadcasts, and distribute a written notice online at http://homeport.uscg.mil/newyork.

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT, above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

4. Collection of Information

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

6. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

7. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

11. Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

12. Energy Effects

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of an RNA and revisions to current RNAs and security zones. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES.

(a) Location. The following areas are regulated navigation areas (RNA) or security zones:

(1) Wall Street Heliport RNA. All waters of the East River within the following boundaries: East of a line drawn between approximate position 40°42′01″ N, 074°00′39″ W (east of The Battery) to 40°41′36″ N, 074°00′52″ W (point north of Governors Island) and north of a line drawn from the point north of Governors Island to the southwest corner of Pier 7 North, Brooklyn; and south of a line drawn between 40°42′14.8″ N, 074°00′20.3″ W (Wall Street, Manhattan), and the northwest corner of Pier 2 North, Brooklyn (NAD 1983).

(2) Randalls and Wards Islands RNA: All waters of the East River between the Hell Gate Rail Road Bridge (mile 8.2), and a line drawn from a point at approximate position 40°47′27.12″ N, 073°54′35.14″ W (Lawrence Point, Queens) to a point at approximate position 40°47′52.55″ N, 073°54′35.25″ W (Port Morris Stacks), and all waters of the Bronx Kill southeast of the Bronx Kill Rail Road Bridge (mile 0.6) (NAD 1983).

(3) Marine Air Terminal, La Guardia Airport Security Zone: All waters of Bowery Bay, Queens, New York, south of a line drawn from the western end of La Guardia Airport at approximate position 40°46′47″ N, 073°53′05″ W to the Rikers Island Bridge at approximate position 40°46′51″ N, 073°53′21″ W and east of a line drawn between the point at the Rikers Island Bridge to a point on the shore in Queens, New York, at approximate position 40°46′36″ N, 073°53′31″ W (NAD 1983).

(4) United Nations Security Zone. All waters of the East River bound by the following points: 40°44′37″ N, 073°58′16.5″ W (the base of East 35th Street, Manhattan), then east to 40°44′34.5″ N, 073°58′10.5″ W (about 180 yards offshore of Manhattan), then northeasterly to 40°45′29″ N, 073°57′26.5″ W (about 125 yards offshore of Manhattan at the Queensboro Bridge), then northwesterly to 40°45′31″ N, 073°57′30.5″ W (Manhattan shoreline at the Queensboro Bridge), then southerly along the shoreline to the starting point at 40°44′37″ N, 073°58′16.5″ W (NAD 1983).

(5) United Nations West Channel Closure Security Zone. All waters of the East River north of a line drawn from approximate position 40°44′37″ N, 073°58′16.5″ W (the base of East 35th Street, Manhattan), to approximate position 40°44′31.04″ N, 073°58′03.10″ W (approximately 400 yards east of the Manhattan shoreline), all waters west of a line drawn from approximate position 40°44′31.04″ N, 073°58′03.10″ W (approximately 400 yards east of the Manhattan shoreline), to the southern tip of Roosevelt Island at approximate position 40°44′57.96″ N, 073°57′41.57″ W, then along the western shoreline of Roosevelt Island to the Queensboro Bridge, and all waters south of the Queensboro Bridge (NAD 1983).

(6) United Nations Full River Closure RNA. All waters of the East River north of a line drawn from approximate position 40°44′37″ N, 073°58′16.5″ W (the base of East 35th Street, Manhattan), to approximate position 40°44′23″ N, 073°57′44.5″ W (Hunters Point, Long Island City), and south of the Queensboro Bridge (NAD 1983).

(b) Definitions. As used in this section—

Designated representative means any Coast Guard commissioned, warrant, or petty officer who has been designated by the COTP to act on the COTP's behalf. The designated representative may be on a Coast Guard vessel, or onboard a federal, state, or local agency vessel that is authorized to act in support of the Coast Guard.

Dignitary means the President or Vice President of the United States, or visiting heads of foreign states or governments.

(c) Regulations. In accordance with the general regulations in 33 CFR part 165, no person or vessel may enter or move within a RNA or security zone created by this section during enforcement periods unless granted permission to do so by the COTP New York or the designated representative. Vessel operators and persons given permission to enter or operate in the RNA or security zone must comply with all directions given to them by the COTP or the designated representative. Upon being hailed by a U.S. Coast Guard or New York City police vessel by siren, radio, flashing lights, or other means, the operator of a vessel must proceed as directed, and follow any instructions to anchor or moor up to a waterfront facility.

(d) Enforcement. The security zone described in paragraph (a)(4) of this section is effective and will be enforced at all times. Coast Guard Sector New York will provide actual notice to mariners for the purpose of enforcement for the regulated navigation areas and security zones described in paragraphs (a)(1), (a)(2), (a)(3), (a)(5), and (a)(6). The Captain of the Port will also provide notice to the maritime public regarding the activation of these RNAs and security zones by appropriate means, which may include but are not limited to a Local Notice to Mariners or marine information broadcasts, and at http://homeport.uscg.mil/newyork.

(e) Contact Information. Vessel operators desiring to enter or operate within a RNA or security zone shall telephone the COTP at (718) 354-4356 or the designated representative via VHF channel 16 to obtain permission to do so.

The Coast Guard will enforce a Safety Zone for the Boomsday Festival Fireworks on the Tennessee River 646.0-649.0 from 9:30 p.m. until 10:30 p.m. on September 1, 2013. This action is necessary to safeguard participants and spectators, including all crews, vessels, and persons on navigable waters, during the Boomsday Festival Fireworks. During the enforcement period, entry into, transiting or anchoring in the Safety Zone is prohibited to all vessels not registered with the sponsor as participants or official patrol vessels, unless specifically authorized by the Captain of the Port (COTP) Ohio Valley or a designated representative.

DATES:

The regulations in 33 CFR 165.801 will be enforced from 9:30 p.m. until 10:30 p.m. on September 1, 2013.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this notice of enforcement, call Petty Officer James Alter, Coast Guard Marine Safety Detachment Nashville at 615-736-5421, or james.r.alter@uscg.mil.

Under the provisions of 33 CFR 165.801, entry into the safety zone listed in Table 1, Table No. 36; Sector Ohio Valley, No. 39 is prohibited unless authorized by the Captain of the Port or a designated representative. Persons or vessels desiring to enter into or passage through the Safety Zone must request permission from the Captain of the Port or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the Captain of the Port or designated representative.

This notice is issued under authority of 5 U.S.C. 552 (a); 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via Local Notice to Mariners and Marine Information Broadcasts.

If the Captain of the Port Ohio Valley or Patrol Commander determines that the Safety Zone need not be enforced for the full duration stated in this notice of enforcement, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

The Coast Guard is establishing a temporary safety zone in the waters of Lake Erie in the vicinity of Put-In-Bay, OH. This safety zone is intended to restrict vessels from a portion of Lake Erie during Battle of Lake Erie Reenactment near Put-In-Bay. This temporary safety zone is necessary to protect people and vessels from the hazards associated with this event.

DATES:

This rule will be effective and enforced from 8 a.m. until 6 p.m. on September 2, 2013.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket USCG-2013-0546 and are available online by going to www.regulations.gov, inserting USCG-2013-0546 in the “Keyword” box, and then clicking “search.” They are also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground floor, Room W12-140, 1200 New Jersey Avenue SE., Washington DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary final rule, contact or email MST1 Ian M. Fallon, U.S. Coast Guard Marine Safety Unit Toledo, at (419) 418-6036 or Ian.M.Fallon@uscg.mil. If you have questions on viewing the docket, call Barbara Hairston, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of AcronymsDHS Department of Homeland SecurityFR Federal RegisterNPRM Notice of Proposed RulemakingTFR Temporary Final RuleA. Regulatory History and Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The details of this emergent event were not received in sufficient time for the Coast Guard to solicit public comments before the start of the maritime event. Thus, waiting for a notice and comment period to run would inhibit the Coast Guard from protecting the public and vessels from the hazards associated with this marine event.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register. For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable and contrary to the public interest.

B. Basis and Purpose

To mitigate the dangers presented by this event, the Captain of the Port Detroit has determined that a safety zone is necessary. This safety zone will be effective and enforced in Lake Erie on Monday, September 2, 2013 from 8 a.m. until 6 p.m. while participants sail tall ships to the site of the Battle of Lake Erie Reenactment at position 41°45′24.0″ N; 082° 57′45.0″ W. These coordinates are North American Datum of 1983 (NAD 83). Black powder charges will be fired from cannons as the ships reenact the original battle fought in 1813. This reenactment is intended for public viewing, and as such poses a significant risk to public safety and property due to the proximity of spectator vessels. Thus, the Captain of the Port Detroit has determined it necessary to establish a safety zone centered on the battle reenactment support vessels to ensure the safety of persons and property and help minimize the associated risks.

C. Discussion of Rule

Because of the aforementioned safety concerns, the Captain of the Port Detroit has determined a temporary safety zone is necessary to ensure the safety of spectators and vessels during the maritime battle reenactment. The Battle of Lake Erie Reenactment safety zone will encompass all U.S. navigable waters of Lake Erie within a 500-yard radius of the reenactment support vessels located near position 41° 45′24.0″ N; 082°57′45.0″ W (NAD 83).

This temporary rule creates a safety zone for each Battle of Lake Erie Reenactment support vessel. In a separate temporary rule (78 FR 44014, July 23, 2013), the Coast Guard created a safety zone around each Tall Ship during the Battle of Lake Erie Reenactment.

Entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on-scene representative. The Captain of the Port or his on-scene representative may be contacted via VHF Channel 16. All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the on-scene representative.

D. Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

1. Regulatory Planning and Review

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for relatively short time. Also, the safety zone is designed to minimize their impact on navigable waters. Furthermore, restrictions on vessel movement within the area of the safety zone expected to be minimal. Under certain conditions, vessels may still transit through the safety zone when permitted by the Captain of the Port.

2. Impact on Small Entities

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in designated portions of Lake Erie, OH from 8 a.m. through 6 p.m. on September 2, 2013.

The safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: the safety zone will be activated, and thus subject to enforcement, for only a short period of time. Traffic may be allowed to pass through the zone with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the activation of the zone, the Coast Guard will issue a Broadcast Notice to Mariners.

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

4. Collection of Information

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

6. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

7. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

11. Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

12. Energy Effects

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a temporary safety zone that is less than one week in duration. Therefore, it is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. Nonetheless, we have prepared an environmnental analysis checklist supporting this determination and Categorical Exclusion Determination which are both available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

(a) Location. The following area is a temporary safety zone: All U.S. navigable waters of Lake Erie within a 500-yard radius of each Battle of Lake Erie Reenactment support vessel located near position 41°45′24″ N, 082°57′45″ W. All coordinates are North American Datum 1983 (NAD83).

(b) Effective and enforcement period. This section will be effective and enforced from 8 a.m. through 6 p.m. on September 2, 2013.

(c) Regulations. (1) In accordance with the general regulations in section 165.23 of this part, entry into, transiting, or anchoring within these safety zone is prohibited unless authorized by the Captain of the Port, Sector Detroit or his designated on-scene representative.

(2) The safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port, Sector Detroit or his designated on-scene representative.

(3) The “on-scene representative” of the Captain of the Port, Sector Detroit is any Coast Guard commissioned, warrant or petty officer or a Federal, State, or local law enforcement officer designated by or assisting the Captain of the Port, Sector Detroit to act on his behalf.

(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port, Sector Detroit or his on-scene representative to obtain permission to do so. The Captain of the Port, Sector Detroit or his on-scene representative may be contacted via VHF Channel 16 or at 313-568-9464. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port, Sector Detroit, or his on-scene representative.

The Coast Guard is establishing temporary safety zone in the waters of Lake Erie, Put-In-Bay, Ohio. This zone is intended to restrict vessels from a portion of Lake Erie during the Battle of Lake Erie Fireworks. This temporary safety zone is necessary to protect people and vessels from the hazards associated with this event.

DATES:

This rule will be effective and enforced from 9:25 p.m. until 10:05 p.m. on September 1, 2013.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket USCG-2013-0697 and are available online by going to www.regulations.gov, inserting USCG-2013-0697 in the “Keyword” box, and then clicking “search.” They are also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground floor, Room W12-140, 1200 New Jersey Avenue SE., Washington DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary final rule, contact or email MST1 Ian M. Fallon, U.S. Coast Guard Marine Safety Unit Toledo, at (419) 418-6036 or Ian.M.Fallon@uscg.mil. If you have questions on viewing the docket, call Barbara Hairston, Program Manager, Docket Operations, telephone 202-366-9826.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The details of this emergent event were not received in sufficient time for the Coast Guard to solicit public comments before the start of the fireworks. Thus, waiting for a notice and comment period to run would inhibit the Coast Guard from protecting the public and vessels from the hazards associated with the maritime fireworks displays.

Under 5 U.S.C. 553(d)(3), The Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register. For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable and contrary to the public interest.

B. Basis and Purpose

To commemorate the War of 1812, a series of events will be held along the Great Lakes during the summer of 2013. One such event will be the reenactment of the Battle of Lake Erie. This reenactment will take place on September 2, 2013 and will be preceded by the launching of fireworks in the vicinity of Put-In-Bay, OH on September 1, 2013. The Captain of the Port Detroit has determined that maritime fireworks displays pose serious hazards to the boating public, such as obstructions to the waterway, explosive dangers, and debris falling into the water. Thus, pursuant to 33 U.S.C. 1226, the Captain of the Port Detroit has determined that a safety zone around the location of the launch platform is necessary to control vessel movement and ensure the safety of persons and property on the water in the vicinity of Put-In-Bay, OH.

C. Discussion of Rule

Because of the aforementioned safety concerns, the Captain of the Port Detroit has determined a temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading, and launching of the Battle of Lake Erie Fireworks. The Battle of Lake Erie Fireworks safety zone will encompass those U.S. navigable waters of Lake Erie within a 1000-ft radius of the fireworks primary launch site located at position 41°39′28.92″ N, 082°48′52.98″ W (NAD 83).

Entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on-scene representative. The Captain of the Port or his on-scene representative may be contacted via VHF Channel 16. All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the on-scene representative.

D. Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

1. Regulatory Planning and Review

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for relatively short time on each day of the fireworks event. Also, the safety zone is designed to minimize their impact on navigable waters. Furthermore, restrictions on vessel movement within the area of the safety zone expected to be minimal. Under certain conditions, vessels may still transit through the safety zone when permitted by the Captain of the Port.

2. Impact on Small Entities

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in designated portions of Lake Erie from 9:25 p.m. through 10:05 p.m. on September 1, 2013.

The safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: the safety zone will be activated, and thus subject to enforcement, for only a short period of time on September 1, 2013. Traffic may be allowed to pass through the zone with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the activation of the zone, the Coast Guard will issue a Broadcast Notice to Mariners.

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

4. Collection of Information

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

6. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

7. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

11. Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

12. Energy Effects

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a temporary safety zone that is less than one week in duration. Therefore, it is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. Nonetheless, we have prepared an environmental analysis checklist supporting this determination and Categorical Exclusion Determination which are both available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

(a) Location. The following area is a safety zone: all waters of Lake Erie within a 1000-foot radius of the fireworks launch site located at position 41°39′28.92″ N, 082°48′52.98″ W (NAD 83). There will be a barge at the center of the safety zone that will be utilized as the fireworks launching platform.

(b) Effective and enforcement period. The section will be effective and enforced from 9:25 p.m. until 10:05 p.m. on September 1, 2013.

(c) Regulations. (1) Under the general regulations in § 165.23, entry into, transiting, or anchoring within these safety zone is prohibited unless authorized by the Captain of the Port, Sector Detroit or his designated on-scene representative.

(2) The safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port, Sector Detroit or his designated on-scene representative.

(3) The “on-scene representative” of the Captain of the Port, Sector Detroit is any Coast Guard commissioned, warrant or petty officer or a Federal, State, or local law enforcement officer designated by or assisting the Captain of the Port, Sector Detroit to act on his behalf.

(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port, Sector Detroit or his on-scene representative to obtain permission to do so. The Captain of the Port, Sector Detroit or his on-scene representative may be contacted via VHF Channel 16 or at 313-568-9464. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port, Sector Detroit, or his on-scene representative.

EPA is taking direct final action to approve revisions to the Placer County Air Pollution Control District (PCAPCD), Santa Barbara County Air Pollution Control District (SBCAPCD) and Ventura County Air Pollution Control District (VCAPCD) portions of the California State Implementation Plan (SIP). These revisions concern volatile organic compound (VOC) emissions from adhesives and sealants. We are approving local rules that regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).

DATES:

This rule is effective on October 29, 2013 without further notice, unless EPA receives adverse comments by September 30, 2013. If we receive such comments, we will publish a timely withdrawal in the Federal Register to notify the public that this direct final rule will not take effect.

ADDRESSES:

Submit comments, identified by docket number EPA-R09-OAR-2013-0453, by one of the following methods:

Instructions: All comments will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through www.regulations.gov or email. www.regulations.gov is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send email directly to EPA, your email address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: Generally, documents in the docket for this action are available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed at www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

Table of ContentsI. The State's SubmittalA. What rules did the State submit?B. Are there other versions of these rules?C. What is the purpose of the submitted rules?II. EPA's Evaluation and ActionA. How is EPA evaluating the rules?B. Do the rules meet the evaluation criteria?C. EPA Recommendations To Further Improve the RulesD. Public Comment and Final ActionIII. Statutory and Executive Order ReviewsI. The State's SubmittalA. What rules did the State submit?

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

Table 1—Submitted RulesLocal agencyRule No.Rule titleAmended/revisedSubmittedPCAPCD235AdhesivesAmended 10/11/1202/06/13SBCAPCD353Adhesives and SealantsRevised 06/21/1209/21/12VCAPCD74.20Adhesives and SealantsRevised 09/11/1204/22/13B. Are there other versions of these rules?

We approved an earlier version of PCAPCD Rule 235 into the SIP on July 18, 1996 (61 FR 37390). A previous version of SBCAPCD 353 was approved into the SIP on April 5, 2000 (65 FR 17771). The most recent version of VCAPCD Rule 74.20 was approved into the SIP on 11/24/2008 (70 FR 70883, November 23, 2005).

C. What is the purpose of the submitted rules?

VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control VOC emissions by limiting VOC content in adhesives and sealants. EPA's technical support documents (TSDs) have more information about these rules.

II. EPA's Evaluation and ActionA. How is EPA evaluating the rules?

Generally, SIP rules must be enforceable (see section 110(a) of the Act), and must not relax existing requirements (see sections 110(1) and 193). In addition, SIP rules must implement Reasonably Available Control Measures (RACM), including Reasonably Available Control Technology (RACT), in moderate and above ozone nonattainment areas. Guidance and policy documents that we use to evaluate enforceability and RACT requirements consistently include the following:

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT and SIP relaxations. The TSDs have more information on our evaluation.

C. EPA Recommendations To Further Improve the Rules

The TSDs describe additional rule revisions that we recommend for the next time the local agency modifies the rules.

D. Public Comment and Final Action

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by September 30, 2013, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on October 29, 2013. This will incorporate these rules into the federally enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

III. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 29, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

This regulation amends the existing time-limited interim tolerances by converting them to permanent tolerances for the combined residues of the insecticide tetrachlorvinphos, including its metabolites, in or on multiple commodities identified in this document, under the Federal Food, Drug, and Cosmetic Act (FFDCA).

DATES:

This regulation is effective August 30, 2013. Objections and requests for hearings must be received on or before October 29, 2013, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES:

The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2011-0360, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), EPA West Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

B. How can I get electronic access to other related information?

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's eCFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

C. How can I file an objection or hearing request?

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0360 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 29, 2013. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-0360, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.htm.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

II. Background

A detailed summary of the background related to EPA's extension of the time-limited interim tolerances for the combined residues of the insecticide tetrachlorvinphos, including its metabolites, in or on multiple commodities can be found in the Federal Register documents of August 14, 2002 (67 FR 52985) (FRL-7192-4); February 6, 2008 (73 FR 6867) (FRL-8345-2); September 17, 2008 (73 FR 53732) (FRL-8375-2); June 8, 2011 (76 FR 33184) (FRL-8874-7); September 16, 2011 (76 FR 57657) (FRL-8887-5); March 6, 2013 (78 FR 14487) (FRL-9380-8); March 13, 2013 (78 FR 15880) (FRL-9380-9); and in the proposed rule for this action on June 12, 2013 (78 FR 35189) (FRL-9390-3). The referenced documents in this unit are available in the docket for the proposed rule under docket ID number EPA-HQ-OPP-2011-0360 at http://www.regulations.gov. There were no substantive comments received in response to the proposed rule of June 12, 2013 (78 FR 35189).

III. Conclusion

For the reasons stated in the Agency's proposed rule of June 12, 2013 (78 FR 35189) (FRL-9390-3), EPA is now finalizing its proposal to amend the existing time-limited interim tolerances by making them permanent for the combined residues of the insecticide tetrachlorvinphos [(Z)-2-chloro-1-(2,4,5-trichlorophenyl) vinyl dimethyl phosphate], including its metabolites, 1-(2,4,5-trichlorophenyl)-ethanol (free and conjugated forms), 2,4,5-trichloroacetophenone, and 1-(2,4,5-trichlorophenyl)-ethanediol: in or on cattle, fat (of which no more than 0.1 parts per million (ppm) is tetrachlorvinphos per se) at 0.2 ppm; cattle, kidney (of which no more than 0.05 ppm is tetrachlorvinphos per se) at 1.0 ppm; cattle, liver (of which no more than 0.05 ppm is tetrachlorvinphos per se) at 0.5 ppm; cattle, meat (of which no more than 2.0 ppm is tetrachlorvinphos per se) at 2.0 ppm; cattle, meat byproducts, except kidney and liver at 1.0 ppm; egg (of which no more than 0.05 ppm is tetrachlorvinphos per se) at 0.2 ppm; hog, fat (of which no more than 0.1 ppm is tetrachlorvinphos per se) at 0.2 ppm; hog, kidney (of which no more than 0.05 ppm is tetrachlorvinphos per se) at 1.0 ppm; hog, liver (of which no more than 0.05 ppm is tetrachlorvinphos per se) at 0.5 ppm; hog, meat (of which no more than 2.0 ppm is tetrachlorvinphos per se) at 2.0 ppm; hog, meat byproducts, except kidney and liver at 1.0 ppm; milk, fat (reflecting negligible residues in whole milk and of which no more than 0.05 ppm is tetrachlorvinphos per se) at 0.05 ppm; poultry, fat (of which no more than 7.0 ppm is tetrachlorvinphos per se) at 7.0 ppm; poultry, liver (of which no more than 0.05 ppm is tetrachlorvinphos per se) at 2.0 ppm; poultry, meat (of which no more than 3.0 ppm is tetrachlorvinphos per se) at 3.0 ppm; and poultry, meat byproducts, except liver at 2.0 ppm.

IV. Statutory and Executive Order Reviews

This final rule amends tolerances under FFDCA section 408(e) of FFDCA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

In addition, under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Agency previously assessed whether establishing tolerances, exemptions from tolerances, raising tolerance levels, or expanding exemptions might adversely impact small entities and concluded, as a generic matter, that there is no adverse economic impact. The factual basis for the Agency's generic certification for tolerance actions was published on May 4, 1981 (46 FR 24950), and was provided to the Chief Counsel for Advocacy of the Small Business Administration.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).

V. Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

PART 180—[AMENDED]1. The authority citation for part 180 continues to read as follows:Authority:

21 U.S.C. 321(q), 346a and 371.

2. In § 180.252, revise the table in paragraph (a) to read as follows:§ 180.252 Tetrachlorvinphos; tolerances for residues.

(a) * * *

CommodityParts per

million

Cattle, fat (of which no more than 0.1 ppm is tetrachlorvinphos per se)0.2Cattle, kidney (of which no more than 0.05 ppm is tetrachlorvinphos per se)1.0Cattle, liver (of which no more than 0.05 ppm is tetrachlorvinphos per se)0.5Cattle, meat (of which no more than 2.0 ppm is tetrachlorvinphos per se)2.0Cattle, meat byproducts, except kidney and liver1.0Egg (of which no more than 0.05 ppm is tetrachlorvinphos per se)0.2Hog, fat (of which no more than 0.1 ppm is tetrachlorvinphos per se)0.2Hog, kidney (of which no more than 0.05 ppm is tetrachlorvinphos per se)1.0Hog, liver (of which no more than 0.05 ppm is tetrachlorvinphos per se)0.5Hog, meat (of which no more than 2.0 ppm is tetrachlorvinphos per se)2.0Hog, meat byproducts, except kidney and liver1.0Milk, fat (reflecting negligible residues in whole milk and of which no more than 0.05 ppm is tetrachlorvinphos per se)0.05Poultry, fat (of which no more than 7.0 ppm is tetrachlorvinphos per se)7.0Poultry, liver (of which no more than 0.05 ppm is tetrachlorvinphos per se)2.0Poultry, meat (of which no more than 3.0 ppm is tetrachlorvinphos per se)3.0Poultry, meat byproducts, except liver2.0[FR Doc. 2013-21272 Filed 8-29-13; 8:45 am]BILLING CODE 6560-50-PFEDERAL COMMUNICATIONS COMMISSION47 CFR Part 64[CG Docket Nos. 13-24 and 03-123; FCC 13-118]Misuse of Internet Protocol (IP) Captioned Telephone Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals With Hearing and Speech DisabilitiesAGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, the Commission adopts permanent rules addressing marketing, labeling, registration and default equipment-setting requirements for internet protocol captioned telephone relay service (IP CTS). This action is necessary to ensure that persons with hearing disabilities have access to telecommunications relay services (TRS) that address their needs in an efficient manner, in furtherance of the objectives of section 225 of the Communications Act of 1934, as amended (Act), to provide relay services enabling communication that is functionally equivalent to conventional telephone voice services, while at the same time protecting the TRS Fund for all forms of TRS.

DATES:

Effective September 30, 2013, except for §§ 64.604(c)(9), (c)(10)(iv), (c)(11)(iii) and (iv), and 64.606(a)(2)(ii)(F) of the Commission's rules, which contain information collection requirements that have not been approved by the Office of Management and Budget (OMB). The Commission will publish a separate document in the Federal Register announcing the effective date.

This is a summary of the Commission's Misuse of Internet Protocol (IP) Captioned Telephone Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, Report and Order (Order), document FCC 13-118, adopted on August 26, 2013 and released on August 26, 2013, in CG Docket Nos. 13-24 and 03-123. In document FCC 13-118, the Commission also seeks comment in an accompanying Further Notice of Proposed Rulemaking (FNPRM), which is summarized in a separate Federal Register Publication. The full text of document FCC 13-118 will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-5563, or Internet: www.bcpiweb.com. Document FCC 13-118 can also be downloaded in Word or Portable Document Format (PDF) at: http://www.fcc.gov/encyclopedia/telecommunications-relay-services-trs. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Final Paperwork Reduction Act of 1995 Analysis

Document FCC 13-118 contains new and revised information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public to comment on the information collection requirements contained in document FCC 13-118 as required by the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13, in a separate notice that will be published in the Federal Register.

Synopsis

1. Title IV of the Americans with Disabilities Act (ADA) requires the Commission to ensure that TRS is available to the extent possible and in the most efficient manner, to people with hearing or speech disabilities. The Act defines TRS as services that enable an individual with a hearing or speech disability to communicate with other individuals “in a manner that is functionally equivalent” to a hearing individual's ability to communicate using voice communications services. This requirement is currently accomplished through TRS facilities staffed by communications assistants (CAs) who relay conversations between persons using various types of assistive communication devices and persons using end user telephone equipment, such as a standard phone, smartphone, or computer.

2. Captioned Telephone Service (CTS) is one type of TRS that works by having a person who is hard of hearing dial the number she or he wishes to call. The CTS user's phone is automatically connected to a captioned telephone CA at the same time she or he reaches the called party. Once connected, the CA re-voices everything the called party says into a voice recognition program that automatically transcribes those words into captions. The captions then are transmitted directly to the caller and are displayed on a captioned telephone device, a computer, or a smartphone. The service also provides captions for incoming calls that are placed using designated phone numbers. The Commission approved compensation for CTS, which allows calls to be made over wireless or wireline devices using the public switched telecommunications network (PSTN) or voice over Internet protocol (VoIP), in Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, Declaratory Ruling, CC Docket No. 98-67, published at 68 FR 55898, September 29, 2003 (CTS Declaratory Ruling). IP CTS, by which the user utilizes an Internet Protocol-enabled device or Internet-enabled software to simultaneously listen to the other party and read captions of what that party is saying, was approved in 2007. Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket No. 03-123, Declaratory Ruling, published at 72 FR 6960, February 14, 2007 (IP CTS Declaratory Ruling).

3. In 2012, the Commission witnessed an unusually steep increase in the growth of IP CTS minutes. This sudden and unprecedented escalation raised serious concerns for the Commission that threatened to overwhelm and, therefore, jeopardize the Fund for all forms of TRS if not immediately addressed. In order to protect the Fund, on January 25, 2013, the Commission took swift and immediate action, in Misuse of Internet Protocol (IP) Captioned Telephone Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket Nos. 13-24 and 03-123, Order and Notice of Proposed Rulemaking, published at 78 FR 8032, February 5, 2013 (IP CTS Interim Order) to prohibit, on an interim basis, provider practices that appeared to be directly causing the sharp increase in IP CTS usage by individuals who did not need this service to communicate in a functionally equivalent manner. The interim rules also included a requirement that providers set equipment to a default captions-off setting, and certain registration and certification requirements. In an accompanying Notice of Proposed Rulemaking (NPRM), published at 78 FR 8090, February 5, 2013, the Commission sought comment on whether to make permanent, revise, or eliminate the interim rules. In addition, the NPRM sought comment on a range of additional matters pertaining to the provision of IP CTS, including whether to extend the self-certification requirements to existing users; whether to adopt quantitative threshold requirements for IP CTS eligibility; whether professional certification by individuals attesting to their eligibility in order to get a free IP CTS device should be made under penalty of perjury; whether to prohibit the free or significantly subsidized distribution of end user equipment by IP CTS providers; whether to adopt a labeling requirement for end user equipment restricting its use to eligible persons with hearing disabilities; whether the Commission should amend its speed of answer rules for IP CTS in light of the default-off rule; whether to require potential IP CTS providers to describe how they will ensure compliance with the self-certification rules as a pre-condition to receiving certification; and whether the Commission should link provider compensation to compliance with the Commission's new rules on certification and restrictions on rewards and free equipment.

4. Legal Authority. Section 225(b) of the Act directs the Commission to ensure that relay services are available to persons with hearing and speech disabilities “to the extent possible and in the most efficient manner.” 47 U.S.C. 225(b)(1) of the Act. Further, section 225(d) of the Act instructs the Commission to adopt regulations implementing section 225, including regulations “establish[ing] functional requirements, guidelines, and operations procedures for [TRS],” 47 U.S.C. 225(d)(1)(A), as well as mandatory “minimum standards” governing the provision of TRS, 47 U.S.C. 225(d)(1)(B). The Commission found that these provisions authorized the interim rules adopted for IP CTS, and the Commission now concludes that they likewise authorize the final rules adopted in this order.

5. In directing the Commission, “[i]n order to carry out the purposes established under section 151 of the Act,” to ensure the availability of TRS “to the extent possible and in the most efficient manner,” Congress qualified the objective of making TRS “available” by using the caveats “to the extent possible” and “in the most efficient manner,” granting the Commission discretion in implementing that provision. 47 U.S.C. 225(b)(1). Moreover, the Commission has authority to balance the goals of section 225 of the Act when implementing that provision. Likewise, in “establish[ing] functional requirements, guidelines, and operations procedures,” 47 U.S.C. 225(d)(1)(A), and mandatory “minimum standards,” for TRS, 47 U.S.C. 225(d)(1)(B), the Commission must act, consistent with its mandate, to ensure that TRS is made available “in the most efficient manner.” 47 U.S.C. 225(b)(1). In this regard, the Commission can take steps to ensure that federal funding for usage of a particular relay service is limited to users that genuinely need that relay service, and preclude federal funding for users that do not have such a need-whether because they can use ordinary voice telephone service or because an alternative (such as amplification) would meet their needs.

6. In the IP CTS Interim Order, the Commission described various marketing practices by which an IP CTS provider had been offering monetary rewards for the referral of customers who signed up for the installation of the provider's IP CTS equipment. These rewards were being given by the provider to its customers, members of the general public, and to hearing and health care professionals, such as audiologists. The Commission found in the IP CTS Interim Order that such incentive programs, the growth of which appears to have coincided with the sudden and unexpected spike in IP CTS usage, may well have been incenting consumers to use the service whether or not it was actually needed. More specifically, by enabling potential customers and third parties to earn money or any other reward either directly or for their friends or charitable organizations, these incentive programs would, if not prohibited, continue to encourage IP CTS use by individuals who do not need it to obtain functionally equivalent telephone service. The Commission found good cause to justify the immediate adoption of an interim rule prohibiting these referrals for rewards programs and any other form of direct or indirect inducements, to subscribe to or use, or encourage subscription to or use of, IP CTS. The rule is consistent with the types of actions the Commission previously has taken to restrict financial incentives determined to be impermissible, including those made in exchange for signing up for or using TRS. See, e.g., Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CC Docket No. 98-67 and CG Docket No. 03-123, Declaratory Ruling, published at 70 FR 9239, February 25, 2005 (2005 Financial Incentives Declaratory Ruling).

7. In document FCC 13-118, the Commission adopts on a permanent basis this interim rule prohibiting IP CTS providers from providing referrals for rewards programs, as well as any other provider programs that offer or provide payments or incentives to sign up or use this service, although it revises the language of the interim rule in certain important respects. The Commission finds that registration incentives raise particular concerns for IP CTS due to the unique characteristics of this service. As IP CTS does not require special skills such as sign language, is generally automated and invisible to the calling parties, and allows a conversation to flow without interruption, and as IP CTS phones offer many, if not all, of the same features and functions of conventional phones, consumers can subscribe to and use IP CTS without sacrificing any ordinary voice communication functionality. As a result, consumers are less likely to “self-screen” in choosing whether to subscribe to IP CTS, than in choosing whether to subscribe to other forms of TRS. Ensuring that IP CTS is made available “in the most efficient manner” to those consumers who actually need it requires special attention to the manner in which this unusually transparent service is marketed to consumers. The rule also prohibits the offering or provision of incentives to third parties, such as audiologists and other hearing health professionals, to increase consumer registration for or use of IP CTS. These incentives are likely to waste the Fund's resources on payments for services used by individuals who may not need the service and therefore are inconsistent with the goals and objectives of section 225 of the Act. The final rule is written, however, to ensure that the rule cannot be construed to prohibit advertising and noncommercial speech-something the Commission never intended to prohibit. The rule also adjusts the terminology to prohibit direct or indirect “incentives” “register for” rather than “inducements” for “subscription to” or use of IP CTS. The term “incentives” is more consistent with the 2005 Financial Incentives Declaratory Ruling and better captures the Commission's intent to prohibit any kind of reward for signing up such users or getting them to use the service, rather than prohibit outreach and advertising conducted to educate potential users about this service. The term “register” more accurately describes the way a consumer signs up to use IP CTS than does the term “subscription.” The final rule also clarifies that the incentives prohibition does not apply to the relationship between an IP CTS provider or equipment distributor and an equipment retailer, where the retailer is not a hearing health professional. Where the retailer is not a professional on whom a consumer may rely for objective advice on solutions for hearing loss, consumers are less likely to be unduly influenced to purchase equipment that they do not need.

8. The Commission also finds that joint marketing arrangements between IP CTS providers and professionals upon whom consumers potentially rely for advice in regard to their hearing loss violate the prohibition of referrals for rewards and other incentives. The Commission finds that joint marketing arrangements between IP CTS providers and such hearing health professionals are akin to a reward for a referral. Moreover, the joint marketing campaigns themselves could be perceived by the consumer as an endorsement of the IP CTS provider by his or her hearing health professional.

9. Finally, the Commission declines, in document FCC 13-118, to make a general determination regarding the scope of provider payments that will be denied when a provider fails to comply with the incentives prohibition. Instead, the Commission will make case-by-case determinations of the appropriate amount of withholdings. Moreover, the Commission will not allow third party certification to serve as a means of curing a provider's failure to comply with its prohibition of referrals for rewards and other incentives. The Commission advises that such providers may also be subject to other remedies, including but not limited to forfeitures and revocation of their certification to provide IP CTS pursuant to § 64.606(e)(2) of its rules.

10. Document FCC 13-118 also adopts on a permanent basis, with some modification, the interim rules relating to registration, certification, equipment and eligibility requirements. First, Commission amends the interim rule requiring that providers that give away, or sell at a cost of less than $75, equipment to potential or existing IP CTS users must require such users to submit to the provider a certification from a professional that the user needs IP CTS in order to achieve functionally equivalent telephone service. The rule adopted in document FCC 13-118 prohibits TRS providers from receiving compensation from the Fund for any IP CTS minutes of use generated by IP CTS equipment that they distribute, directly or indirectly, for free or for less than $75 to consumers after the effective date of the rule. The alternative of professional certification is thus eliminated. The prohibition also applies to any officer, director, partner, employee, agent, subcontractor, or sponsoring organization or entity (collectively “affiliate”) of any TRS provider. Further, any type of arrangement by an IP CTS provider, directly or indirectly through any third party (other than through a state or local equipment distribution program), to distribute equipment at no charge or for less than $75 to consumers is likewise prohibited. The Commission notes that many IP CTS devices are modern and attractive, and often provide enhanced sound amplification—features that are likely to entice consumers with or without hearing loss to seek their acquisition if they are given away for free or at low cost. Once the device is in a consumer's possession, consumers may routinely use the device with captions—as might others in the consumer's household—even if they do not actually need the service for effective communication. In fact, the unobtrusive nature of IP CTS is such that consumers may not even be aware that captions are turned on or that they have the ability to turn them off. In this manner, the free distribution of such devices is likely to contribute to IP CTS usage by persons who do not have a sufficient degree of hearing loss to require this service to understand conversation over the phone. Paying at least $75 for IP CTS equipment, by contrast, provides a concrete indication that the consumer has thought the transaction through sufficiently to have concluded that she or he needs IP CTS for effective communication.

11. In adopting this rule, the Commission also concludes that overall, as a practical matter, consumer self-screening based on having to make a significant investment in equipment is likely to be a more effective approach to screening than is third-party certification. The Commission's interim rule, requiring certification by an independent professional when equipment is provided for free or for less than $75, had been designed to prevent the distribution of IP CTS equipment to individuals who do not actually need IP CTS. However, experience with this approach suggests that it may not be very effective in achieving adequate screening of such individuals. Under the interim rule, determining whether a person qualifies for free or low-cost distribution of IP CTS necessarily involves the exercise of professional judgment by numerous individuals about whom the Commission has little information. The Commission cannot effectively oversee the performance of this important gatekeeping function by hundreds or thousands of hearing health and other professionals. Further, where free IP CTS phones have been offered directly or indirectly by a provider under the interim rules, the advertising for such phones continues to focus on the availability of a “free” IP CTS phone, with the need for third-party certification alluded to only vaguely, if at all. Thus, the professional's role is likely to change from helping the consumer select on their merits from a number of alternative assistive technologies, to accepting or vetoing a choice already made by the consumer, based on exposure to ads promoting the free availability of an IP CTS phone. Moreover, contrary to the Commission's clearly stated intent that the screening third party professional be independent of any provider, the Commission is aware of numerous instances in which sessions are arranged by a provider, to which consumers are invited to obtain a free hearing analysis and a free IP CTS phone at the same time and location. Professionals who participate in such sessions, whether for compensation, the prospect of meeting potential new clients, or for other reasons, are linked to the sponsoring provider (or are so perceived by potential customers and clients), and thus are not “independent” as contemplated by the interim rules.

12. Setting $75 as the minimum price threshold represents a reasonable balancing of interests. There is record support for this amount, and it is high enough to deter a consumer from purchasing an item if he or she does not need it for communication, but not so high as to make the purchase of equipment overly burdensome. It is below the listed retail prices for the captioned telephones used with several IP CTS offerings. In addition, $75 may be roughly comparable to the price of a good-quality “specialty” phone such as an enhanced amplification phone. The $75 minimum price is also low enough to take into account the different financial circumstances of those who need IP CTS.

13. To ensure that information supporting provider compliance with this requirement is maintained and available for Commission review, providers must maintain, with each consumer's registration records, records describing any IP CTS equipment provided, directly or indirectly, to such consumer and the amount paid for such equipment. Such records shall be maintained for a minimum of five years after the consumer ceases to obtain service from the provider.

14. The Commission finds this rule to be consistent with functional equivalence and the statutory goal to achieve full communications access by people with disabilities. The Commission has consistently distinguished between the provision of relay service, which is explicitly mandated under 47 U.S.C. 225, and the provision of equipment, which is not. Moreover, since users of voice communications services pay for equipment, there is no plausible basis for reading into the statute a restriction against requiring users of TRS to also pay for equipment. The Commission, however, places no restriction on the free distribution of equipment by state or local governmental programs, which are relatively neutral parties that can objectively screen consumers for their eligibility in the program. The availability of such free or discounted equipment in most states will help to fulfill Congress's and the Commission's goals of ensuring the widespread availability of IP CTS to individuals who can benefit from the service.

15. The Commission also applies this restriction to software and applications, e.g., for mobile phone or computer users of IP CTS. As with hardware, because of the ease and convenience of using IP CTS, persons who do not have a sufficient degree of hearing loss to require this service to understand conversation over the phone (or who do not have any hearing loss at all) could find this service desirable for reasons such as creating a transcript or making calls in noisy locations. Absent the restriction, free or de minimis cost IP CTS software would be widely promoted by IP CTS providers in the same way as free IP CTS equipment has been. From the providers' perspective, the more users that sign up to acquire IP CTS software and applications, the more compensation the provider may seek to collect from the Fund, at no cost to the user. The Commission thus disagrees with commenters who argue that consumers would not download and use applications and software that they do not need, and that because software, updates, and applications are generally free or available at a low cost, the incentive for a consumer to accept a valuable phone for free generally does not apply to software. Offering such software for free or for less than $75 has the potential effect of attracting customers who might not need to use the service, which is inconsistent with the purpose of the TRS program. The Commission does not, however, consider it necessary to proscribe the provider practice of permitting consumers who are already registered users of their service to download mobile applications or other software for free. Once the user has made the initial investment in an IP CTS device, or has been deemed eligible for the provision of a device by a state EDP, the Commission believes that the risk that such a user is ineligible for IP CTS is substantially reduced. New users without IP CTS telephones will be required, however, to make a one-time payment of at least $75 for the initial software or application in order for IP CTS service to that user to be compensable from the Fund.

16. The rules adopted in document FCC 13-118 also require each IP CTS provider, in order to be eligible for compensation from the Fund for providing service to new IP CTS users, to register each new IP CTS user. Specifically, the rule requires, as part of a registration process required for both new and existing consumers, that each provider secure from each consumer the consumer's name, address and telephone number and a self-certification form, signed under penalty of perjury, stating that the consumer (1) has a hearing loss that necessitates use of captioned telephone service, (2) understands that the captions on captioned telephone service are provided by a live communications assistant who listens to the other party on the line and provides the text on the captioned phone, (3) understands that the cost of captioning each IP CTS call is funded through a federal program, and (4) will not permit, to the best of the consumer's ability, persons who have not registered to use IP CTS to make captioned telephone calls on the consumer's registered IP captioned telephone service or device. Document FCC 13-118 amends slightly the language needed for self-certification from that in the interim rule, to ensure that IP CTS consumers fully understand the certification, and to have the consumer certify that he or she will not permit individuals who are not registered to use the service. The Commission further makes permanent the requirements that such self-certification be made on a form separate from any other user agreement (such as on a separate page); that it bear a separate signature specific to the self-certification; and that the signature be made under penalty of perjury. The interim rule's requirements for self-certification are also modified to permit a user's spouse or person with legal custody or power of attorney for the user to sign the certificate, for users who are not competent to sign a legal document. The Commission finds that the registration required in the IP CTS Interim Order for new users, together with the mandate that consumers self-certify under penalty of perjury their eligibility to use IP CTS, will help prevent the registration of individuals who do not need captions to obtain functionally equivalent telephone service. Such registration is already required of other IP-enabled forms of TRS, and is a logical and useful means to ensure that only those individuals who are truly eligible for different forms of TRS are allowed to use these services.

17. The Commission also adopts a new rule requiring providers to register all existing IP CTS consumers within 180 days. Although the Commission proposed in the IP CTS Interim Order that all existing IP CTS users must be registered within a 90-day period, the rule adopted in document FCC 13-118 requires providers to register and obtain certification from their existing users within 180 days of the rule's effective date. A 180-day deadline will strike the appropriate balance between removing ineligible individuals from this service and allowing eligible individuals to continue using it. The longer registration period of 180 days will allow providers the time necessary to complete the registration process and prevent the loss of eligible users because of an inability to register on time. IP CTS providers that fail to register existing users within this period will not be compensated for service to any unregistered users, or to any users who fail to provide the required self-certification, immediately upon expiration of this period. For existing consumers who received their equipment for free or at a price below $75 directly from an IP CTS provider, prior to the effective date of the interim rules, the Commission also requires that the provider obtain from the consumer either a payment of $75 or a certification from an independent, third party professional, made under penalty of perjury, that (1) the consumer has a hearing loss that necessitates use of captioned telephone service, and (2) the third party professional understands that the captioning on captioned telephone service is performed by a live CA and is funded through a federal program. In addition, providers must require consumers to obtain and provide the professional's name, title, address, telephone number, and email address. If the equipment was obtained from a source other than a provider or an equipment distribution program administered by a state or local government) for free or at a price below $75, prior to the effective date of the interim rules, the provider must obtain the above third party professional certification and related information about the third party professional. Third party professionals must be qualified to evaluate hearing loss. The third party professional may not have been referred to the IP CTS user directly or indirectly by any TRS provider or affiliate. The third party professional also may have no relationship with a TRS provider, and the TRS provider may play no role in acquisition of the third party professional certificate.

18. Registration and certification must be obtained from existing users within 180 days of the effective date. Providers that do not meet these deadlines will not be compensated for services to unregistered users. To ensure that information supporting the eligibility of users continues to be available for Commission review, the rule requires that records of all new and existing consumers' registration and self-certification, with all the information required to be included in such certifications, be maintained for a minimum of five years after the consumer ceases to obtain service from the provider. The Commission also makes permanent its interim rule requiring each IP CTS provider to maintain the confidentiality of registration and certification information that it acquires, and to not disclose such registration and certification information except as required by law. Finally, the Commission rule requires that applicants seeking certification as IP CTS providers must submit to the Commission a description of how they will ensure that they do not request or collect payment from the TRS Fund for service to users who do not satisfy the registration and certification requirements, and establish that they have adequate measures and procedures in place to ensure that they will seek payment for serving only eligible users who satisfy the registration and certification requirements.

19. The Commission declines to adopt a specific quantitative threshold to determine eligibility to use IP CTS. The majority of commenters, including providers, consumers, and telecommunications carriers contributing to the Fund, express opposition to quantitative threshold eligibility requirements based on decibel levels to determine IP CTS eligibility. The Commission is persuaded by the commenters' concerns that the use of a specified decibel level of hearing loss does not take into account all other factors that may contribute to an individual's difficulty in understanding speech on a telephone. Thus, at this time, the Commission is not persuaded that it can readily identify bright-line eligibility thresholds for which the benefits in protecting the Fund outweigh the costs, including the potential for excluding users for whom use of IP CTS otherwise would be consistent with section 225 of the Act and Commission policy. Nevertheless, the Commission will continue to monitor IP CTS provider practices and usage.

20. The Commission concludes in Document FCC 13-118 that a printed label to be adhered to the IP CTS device itself is the best approach for supplementing other information made available to IP CTS users on the need to limit use of the device only to registered IP CTS users, and is appropriate to further prevent casual or inadvertent use of IP CTS. However, for software-based IP CTS on mobile phones, laptops, tablets, computers or other similar devices, the Commission concludes that a printed label is impractical. Instead, IP CTS providers must ensure that, each time the consumer logs into the application, the notification language shown above appears in a conspicuous location on the device screen immediately after log-in. The Commission rule adopts a shorter notice than that proposed in the NPRM, and requires that IP CTS providers ensure that any newly distributed IP CTS equipment has affixed to its face and in a conspicuous location, and in a clearly legible font, a label that contains the following brief statement:

Federal Law Forbids Anyone But Registered Users With Hearing Loss From Using This Phone With the Captions On

The rule also requires any IP CTS provider that already has distributed IP CTS equipment to users as of the effective date of the final rule, to distribute the above equipment labels to such users within thirty (30) days after the effective date of the final rule, along with clear and specific instructions directing the users to place such labels on the face of their IP CTS equipment in a conspicuous location. Each IP CTS provider shall maintain, with each consumer's registration records, records stating whether the required label was affixed to such equipment prior to its provision to the consumer. Such records shall be maintained for a minimum period of five years after the consumer ceases to obtain service from the provider.

21. In the IP CTS Interim Order, the Commission expressed concerns that IP CTS equipment with a default of automatically displaying captions (“default captions-on”) presented the risk that individuals who do not need CTS to communicate in a functionally equivalent manner might inadvertently use IP CTS when using the IP CTS telephone of an eligible IP CTS user, resulting in improper billing of the TRS Fund. To avoid such misuse and to safeguard the Fund, the Commission required, on an interim basis, that all providers ensure that equipment and software used in conjunction with their IP CTS have captions turned off as the default setting, and that users be required to affirmatively turn on the captions for each call. The Commission sought comment on whether it should make this interim rule permanent, and if so, whether it should be changed in any way. Despite opposition to the captions default off requirement, the Commission finds that, given the unusual characteristics of IP CTS relative to other relay services, it is reasonable and prudent to protect the viability of the Fund by requiring that equipment, software, and mobile applications used in conjunction with IP CTS have a default setting of “captions off” at the beginning of each call. Especially in light of the history of this service prior to the adoption of the interim rules, it may be that some currently registered IP CTS users do not actually need IP CTS for effective communication. Others may need captions in some circumstances, but not others. Accordingly, and because IP CTS is provided without interruption in the normal conversational flow and the captions do not interfere in any way with the consumer's ability to conduct a telephone call by voice in the ordinary manner, defaulting captions to “on” would mean that IP CTS may be provided to individuals who do not need it and the TRS Fund is inappropriately billed for the cost. The Commission concludes that a requirement to push one additional button when dialing or when receiving a call will become habit and will not interfere with the functional equivalence of the IP CTS experience for most users. The Commission recognizes, however, that the certain modifications to the interim rule are appropriate, as supported by extensive comments. The Commission is sensitive to comments that highlight the difficulties that some users, especially users with a cognitive or mobility disability, are reportedly having with the default captions off requirement, and the concern that the rule might undermine the functional equivalence requirement of the ADA for these users. The Commission therefore amends the interim rule, to adopt a process for this unique group of users to obtain an exemption from the default-off requirement if the user has a cognitive or physical disability that significantly impairs the ability of the user to turn on captioning at the start of each call. To prevent abuse of this exception, the rule requires applicants seeking this exception to submit to their provider (1) a self-certification, dated and made under penalty of perjury, that the requirement to activate captioning at the start of each call significantly impedes the user's ability to make use of the captioned telephone service; and (2) a certification from an independent, third party licensed physician in good standing, dated and made under penalty of perjury, that the consumer has a physical or mental disability or functional limitation that significantly impedes the consumer's ability to activate captioning at the start of each call, including a brief description of the basis for such statement. In the event that the user is not competent to provide the required self-certification, such certification shall be made by the user's consumer's spouse or legal guardian or a person with power of attorney. A third-party, independent physician certification must include the physician's name, title, area of specialty or expertise, address, telephone number, and email address. In addition, the rule prohibits providers from accepting a certification from any physician who has been referred to the IP CTS user, either directly or indirectly, by any provider of TRS or any officer, director, partner, employee, agent, subcontractor, or sponsoring organization or entity of any TRS provider. In addition, the physician making such certification shall not have any relationship with and shall not have received any payment or other thing of value from the TRS provider or any affiliate of the TRS provider, with whom the individual seeking the exemption is requesting service. Additionally, the rule prohibits any provider from facilitating or otherwise playing a role, in any way, in the acquisition of such physician certifications. If any IP CTS provider facilitates certification by a third party physician, such IP CTS provider shall be subject to the potential array of consequences that arise from violations of TRS rules, including revocation of its certification to provide IP CTS or other enforcement actions. IP CTS providers must maintain detailed records of all consumers who have submitted such certifications for five years, and report to the Commission on a monthly basis subject to confidentiality requirements, and such records shall include a list of all newly exempted consumers (with names redacted), the dates on which each consumer registered for IP CTS with the provider and was provided with IP CTS equipment with a default setting of captions on, the area of specialty or expertise of the certifying physician accompanying each hardship certification, and the basis for granting each hardship exception. The Commission requires each IP CTS provider to maintain the confidentiality of such exemption certification information, and shall also maintain the confidentiality of such information itself, and shall carefully review it to ensure that this exception to the rule is not abused.

22. For the purpose of limiting as much as possible the delay between when a user answers an incoming call and pushes the button to initiate captioning, the Commission modifies the interim rule by requiring that providers ensure that each IP CTS telephone they distribute includes a button, icon, or other comparable feature that is easily operable and requires only one step for the user to turn on captioning.

23. The Commission concludes that IP CTS software applications when used on mobile phones, laptops, tablets, and computers meet the underlying purpose of the captions off requirement because of the way these software products operate and how they are likely to be used. The Commission therefore rules that the captions off requirement is met by IP CTS software applications when used on mobile phones, laptops, tablets, and computers, provided that the following two conditions are satisfied: (1) Consumers must actively set up the IP CTS software feature by individually logging in with a unique ID and password that is provided only to the registered user; and (2) the default setting switches to “captions on” only for the limited session during which the user is logged on, rather than remaining on indefinitely. The Commission reserves the right to reconsider the manner in which it will apply the captions off requirement to these devices.

24. Several commenters raise concerns that in an emergency situation, individuals may not remember to activate the caption functionality when calling 911 services. The Commission finds that the record does not provide sufficient data to enable it to evaluate the extent of this hazard or the technical feasibility of configuring equipment so that captions are defaulted to “on” solely for 911 calls. The Commission will continue to monitor and seek comment on this issue. In order to address immediate concerns about 911 calling, the Commission permits, in document FCC 13-118, providers to turn on captions automatically for 911 calls if it is technically feasible to do so while maintaining captions defaulted to off for other calls. In the Notice accompanying document FCC 13-118, the Commission seeks comment on other issues related to its default caption-off rule, including whether the rule should apply to answering machines and similar devices. The Notice also asks whether an exemption should be provided for consumers with IP CTS phones that are available only to registered IP CTS users, or whether there should be any other exemptions to the captions default off rule. The Commission declines, at this time to create any further exemption to the default caption-off rule, such as for IP CTS users who live alone, live only with other individuals who are hard of hearing, or who are in an office setting with sole access to the IP CTS phone. The Commission remains concerned that even a consumer living alone may not need captioning for every call, and that a default off setting may be needed to prevent unneeded use of the captioning. The Commission remains open, however, to revisiting this conclusion in the future, and for this reason solicits comments on the issue.

25. The interim rules adopted in the IP CTS Interim Order are set to expire on September 3, 2013, which will be less than 30 days after these rule extensions will be published in the Federal Register. The Commission therefore extends the effectiveness of each interim rule until the final rule replacing it becomes effective.

Final Regulatory Flexibility Certification

26. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that “the rule will not have a significant economic impact on a substantial number of small entities.” The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

27. Internet protocol captioned telephone relay service (IP CTS) is a form of telecommunications relay service (TRS) that permits people who can speak, but who have difficulty hearing over the telephone, to speak directly to another party on a telephone call and to use an Internet Protocol-enabled device to simultaneously listen to the other party and read captions of what that party is saying. During the spring and fall of 2012, the Commission witnessed an unusually steep increase in the growth of IP CTS minutes. This sudden and unprecedented escalation raised serious concerns for the Interstate Telecommunications Relay Services (TRS) Fund (Fund) that, if not immediately addressed, threatened to overwhelm and, therefore, jeopardize the Fund for all forms of TRS. In order to protect the Fund, on January 25, 2013, the Commission took swift and immediate action, in the IP CTS Interim Order, to terminate, on an interim basis, provider practices that appeared to be resulting in the use of IP CTS by individuals who did not need this service to communicate in a functionally equivalent manner.

28. In document FCC 13-118, the Commission modifies and makes permanent certain of those interim rules. The Commission therefore permanently prohibits all referrals for rewards programs and any other form of direct or indirect incentives, financial or otherwise, to register for or use IP CTS or for referral of IP CTS customers. The Commission also adopts as a final rule its interim requirement that each IP CTS provider, in order to be eligible for compensation from the Fund for providing service to new IP CTS users, (i) to register each new IP CTS user, and, (ii) as part of the registration process, to obtain from each user a self-certification that the user has a hearing loss that necessitates IP CTS to communicate in a manner that is functionally equivalent to communication by conventional voice telephone users. The Commission further makes permanent its interim rule requiring IP CTS providers to ensure that equipment and software used in conjunction with their service have a default setting of captions off at the beginning of each call, so that the consumer must take an affirmative step to turn on the captions each time the consumer wishes to use IP CTS, while allowing IP CTS users to apply for an exception to this provision upon a showing of hardship. Document FCC 13-118 also adopts rules: (1) Requiring each IP CTS provider, as a condition of continuing to offer service to existing IP CTS users, (a) to register each such user with the IP CTS provider and (b) as part of the registration process, to obtain from each user self-certification that the user has a hearing loss that necessitates IP CTS to communicate in a manner that is functionally equivalent to communication by conventional voice telephone users and that the user understands the nature and restrictions of IP CTS; (2) requiring IP CTS equipment to have labels informing consumers that IP CTS may be used only by the person(s) registered to use the equipment; (3) prohibiting all providers from receiving compensation from the Fund for minutes of use generated from IP CTS users receiving IP CTS equipment, at no cost or below $75 on or after the effective date of this rule; and (4) making provider compensation contingent on compliance with the requirements for user self-certification.

29. The Commission believes that none of these requirements would impose a significant economic impact on providers, including small businesses. Specifically, each of the new requirements is either already in place, or entails only minor operational changes that can be accomplished at minimal cost to each provider of IP CTS, including small businesses, and each requirement is necessary to help to ensure that IP CTS is as immune as possible from waste, fraud and abuse that could otherwise threaten the long-term viability of this program. In particular, the hardship exemption adopted in document FCC 13-118 will impose new reporting and recordkeeping obligations on all IP CTS providers, including small entities. However, the reporting and recordkeeping requirements will not be substantial, because each IP CTS provider will have a one-time requirement for each consumer who qualifies for the hardship exemption. Moreover, the hardship exemption was supported by all commenters, including all IP CTS providers. Because the exemption will allow the impacted consumers to be able to make use of the service, the hardship exemption should result in additional legitimate compensable minutes for IP CTS providers, and thereby benefit such providers, including small entities. The Commission thus finds that the hardship exemption will not cause any significant economic impact on providers, including those which are small entities. Additionally, although the 911 exception will require a one-time software change on the part of providers, it is only required if technically feasible, and the requirement to implement such software change is outweighed by the public safety benefit of better access to 911 service. Therefore, the Commission finds that the 911 exception will not cause any significant economic impact on providers, including those which are small entities.

30. Therefore, the Commission concludes that there will be no significant economic impact on the small entities affected by the changes adopted in document FCC 13-118.

31. In analyzing whether a substantial number of small entities will be affected by the requirements adopted in document FCC 13-118, the Commission notes that the SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such firms having 1,500 or fewer employees. Four providers currently receive compensation from the Interstate TRS Fund for providing IP CTS: Hamilton Relay, Inc.; Purple Communications, Inc.; Sorenson Communications, Inc. and its wholly-owned subsidiary CaptionCall; and Sprint Nextel Corporation. In addition, Miracom USA, Inc. has applied to the Commission for certification to be authorized to receive compensation from the Interstate TRS Fund (Fund) to provide IP CTS. The Commission concludes that two of the five IP CTS providers and applicants that would be affected by the proposed rules are deemed to be small entities under the SBA's small business size standard. Because each of the new requirements adopted in the in document FCC 13-118 is either already in place or has no, or minimal, economic impact upon small entities, the Commission concludes that there will be no significant economic impact on the small entities affected by the changes adopted in document FCC 13-118, and adopts these rules as necessary to help to ensure that IP CTS is as immune as possible from waste, fraud and abuse that could otherwise threaten the long-term viability of this program.

32. Therefore, for all of the reasons stated above, the Commission certifies that the requirements of document FCC 13-118 will not have a significant economic impact on a substantial number of small entities.

33. The Commission will send a copy of document FCC 13-118, including a copy of the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA.

Congressional Review Act

34. The Commission will send a copy of document FCC 13-118 in a report to be sent to Congress and the Governmental Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

Ordering Clauses

Pursuant to the authority contained in sections 1, 2, 4(i), (4)(j) and 225 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j) and 225, document FCC 13-118 Report and Order is hereby adopted.

The final rules on referrals for rewards, 47 CFR 64.604(c)(8) of the Commission's rules, shall be effective September 30, 2013, pursuant to 5 U.S.C. 553(d) and § 1.427(a) of the Commission's rules, 47 CFR 1.427(a).

The interim rules on referrals for rewards, 47 CFR 64.604(c)(8) of the Commission's rules, adopted in the Commission's IP CTS Interim Order, document FCC 13-13, shall continue to be effective until the final rules on referrals for rewards adopted herein become effective.

The interim rules on new user registration and certification, 47 CFR 64.604(c)(9) of the Commission's rules, adopted in the Commission's IP CTS Interim Order, document FCC 13-13, shall continue to be effective until the final rules on user registration and certification adopted herein become effective.

The final rules requiring a default setting of captions off, 47 CFR 64.604(c)(10)(i), (c)(10)(ii), (c)(10)(iii) and (c)(10)(v) of the Commission's rules, shall be effective September 30, 2013, pursuant to 5 U.S.C. 553(d) and 1.427(a) of the Commission's rules, 47 CFR 1.427(a).

The interim rules requiring a default setting of captions off, 47 CFR 64.604(c)(10) of the Commission's rules, adopted in the Commission's IP CTS Interim Order, document FCC 13-118, shall continue to be effective until the final rules requiring a default setting of captions off adopted herein become effective.

The final rules regarding compensation of IP CTS providers in regard to minutes of use generated by consumers receiving certain IP CTS equipment and the final rules prohibiting persons who have not registered for IP CTS from using IP CTS equipment with captions turned on, 47 CFR 64.604(c)(11)(i) and (ii) of the Commission's rules, shall be effective September 30, 2013, pursuant to 5 U.S.C. 553(d) and § 1.427(a) of the Commission's rules, 47 CFR 1.427(a).

The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of document FCC 13-118 Report and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for advocacy of the Small Business Administration.

(8) Incentives for use of IP CTS. (i) An IP CTS provider shall not offer or provide to any person or entity that registers to use IP CTS any form of direct or indirect incentives, financial or otherwise, to register for or use IP CTS.

(ii) An IP CTS provider shall not offer or provide to a hearing health professional any direct or indirect incentives, financial or otherwise, that are tied to a consumer's decision to register for or use IP CTS. Where an IP CTS provider offers or provides IP CTS equipment, directly or indirectly, to a hearing health professional, and such professional makes or has the opportunity to make a profit on the sale of the equipment to consumers, such IP CTS provider shall be deemed to be offering or providing a form of incentive tied to a consumer's decision to register for or use IP CTS.

(iv) For the purpose of this paragraph (c)(8), a hearing health professional is any medical or non-medical professional who advises consumers with regard to hearing disabilities.

(v) Any IP CTS provider that does not comply with this paragraph (c)(8) shall be ineligible for compensation for such IP CTS from the TRS Fund.

(9) IP CTS registration and certification requirements. (i) IP CTS providers must first obtain the following registration information from each consumer prior to requesting compensation from the TRS Fund for service provided to the consumer. The consumer's full name, date of birth, last four digits of the consumer's social security number, address and telephone number.

(ii) Self-certification prior to demarcation date. IP CTS providers, in order to be eligible to receive compensation from the TRS Fund for providing IP CTS, also must first obtain a written certification from the consumer, and if obtained prior to the demarcation date, such written certification shall attest that the consumer needs IP CTS to communicate in a manner that is functionally equivalent to the ability of a hearing individual to communicate using voice communication services. The certification must include the consumer's certification that:

(A) The consumer has a hearing loss that necessitates IP CTS to communicate in a manner that is functionally equivalent to communication by conventional voice telephone users;

(B) The consumer understands that the captioning service is provided by a live communications assistant; and

(C) The consumer understands that the cost of IP CTS is funded by the TRS Fund.

(iii) Self-certification on or after demarcation date. IP CTS providers must also first obtain from each consumer prior to requesting compensation from the TRS Fund for the consumer, a written certification from the consumer, and if obtained on or after the demarcation date, such certification shall state that:

(A) The consumer has a hearing loss that necessitates use of captioned telephone service;

(B) The consumer understands that the captioning on captioned telephone service is provided by a live communications assistant who listens to the other party on the line and provides the text on the captioned phone;

(C) The consumer understands that the cost of captioning each Internet protocol captioned telephone call is funded through a federal program; and

(D) The consumer will not permit, to the best of the consumer's ability, persons who have not registered to use Internet protocol captioned telephone service to make captioned telephone calls on the consumer's registered IP captioned telephone service or device.

(iv) The certification required by paragraphs (c)(9)(ii) and (iii) of this section must be made on a form separate from any other agreement or form, and must include a separate consumer signature specific to the certification. Beginning on the demarcation date, such certification shall be made under penalty of perjury. For purposes of this section, an electronic signature, defined by the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., as an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record, has the same legal effect as a written signature.

(v) Third-party certification prior to demarcation date. Where IP CTS equipment is or has been obtained by a consumer from an IP CTS provider, directly or indirectly, at no charge or for less than $75 and the consumer was registered in accordance with the requirements of paragraph (c)(9) of this section prior to the demarcation date, the IP CTS provider must also obtain from each consumer prior to requesting compensation from the TRS Fund for the consumer, written certification provided and signed by an independent third-party professional, except as provided in paragraph (c)(9)(xi) of this section.

(vi) To comply with paragraph (c)(9)(v) of this section, the independent professional providing certification must:

(A) Be qualified to evaluate an individual's hearing loss in accordance with applicable professional standards, and may include, but are not limited to, community-based social service providers, hearing related professionals, vocational rehabilitation counselors, occupational therapists, social workers, educators, audiologists, speech pathologists, hearing instrument specialists, and doctors, nurses and other medical or health professionals;

(B) Provide his or her name, title, and contact information, including address, telephone number, and email address; and

(C) Certify in writing that the IP CTS user is an individual with hearing loss who needs IP CTS to communicate in a manner that is functionally equivalent to telephone service experienced by individuals without hearing disabilities.

(vii) Third-party certification on or after demarcation date. Where IP CTS equipment is or has been obtained by a consumer from an IP CTS provider, directly or indirectly, at no charge or for less than $75, the consumer (in cases where the equipment was obtained directly from the IP CTS provider) has not subsequently paid $75 to the IP CTS provider for the equipment prior to the date the consumer is registered to use IP CTS, and the consumer is registered in accordance with the requirements of this paragraph (c)(9) on or after the demarcation date, the IP CTS provider must also, prior to requesting compensation from the TRS Fund for service to the consumer, obtain from each consumer written certification provided and signed by an independent third-party professional, except as provided in paragraph (c)(9)(xi) of this section.

Note to paragraphs (c)(9)(ii), (iii), (iv), (v) and (vii):

The date demarking which certification obligations apply to which consumers shall be the date when notice of OMB approval of the amendments to the registration and certification requirements is published. The FCC will publish a notice of the effective date along with a corrective amendment to specify the demarcation date.

(viii) To comply with paragraph (c)(9)(vii) of this section, the independent third-party professional providing certification must:

(A) Be qualified to evaluate an individual's hearing loss in accordance with applicable professional standards, and must be either a physician, audiologist, or other hearing related professional. Such professional shall not have been referred to the IP CTS user, either directly or indirectly, by any provider of TRS or any officer, director, partner, employee, agent, subcontractor, or sponsoring organization or entity (collectively “affiliate”) of any TRS provider. Nor shall the third party professional making such certification have any business, family or social relationship with the TRS provider or any affiliate of the TRS provider from which the consumer is receiving or will receive service.

(B) Provide his or her name, title, and contact information, including address, telephone number, and email address.

(C) Certify in writing, under penalty of perjury, that the IP CTS user is an individual with hearing loss that necessitates use of captioned telephone service and that the third party professional understands that the captioning on captioned telephone service is provided by a live communications assistant and is funded through a federal program.

(ix) In instances where the consumer has obtained IP CTS equipment from a local, state, or federal governmental program, the consumer may present documentation to the IP CTS provider demonstrating that the equipment was obtained through one of these programs, in lieu of providing an independent, third-party certification under paragraphs (c)(9)(v) and (vii) of this section.

(x) Each IP CTS provider shall maintain records of any registration and certification information for a period of at least five years after the consumer ceases to obtain service from the provider and shall maintain the confidentiality of such registration and certification information, and may not disclose such registration and certification information or the content of such registration and certification information except as required by law or regulation.

(xi) IP CTS providers must obtain registration information and certification of hearing loss from all IP CTS users who began receiving service prior to March 7, 2013. Notwithstanding any other provision of paragraph (c)(9) of this section, IP CTS providers shall be compensated for compensable minutes of use generated prior to the registration deadline by any such users, but shall not receive compensation for minutes of IP CTS use generated on or after the registration deadline by any IP CTS user who has not been registered.

Note to paragraph (c)(9)(xi):

The deadline for compliance with the requirement for IP CTS providers to register consumers who began service prior to March 7, 2013 shall be 180 days after OMB approval has been obtained, and IP CTS providers shall be permitted to receive compensation for minutes of use generated by such consumers prior to the registration deadline. The FCC will publish a notice of the effective date along with a corrective amendment to specify the deadline for compliance.

(10) IP CTS default settings. (i) IP CTS providers must ensure that their equipment and software applications used in conjunction with their service have a default setting of captions off, so that all IP CTS users must affirmatively turn on captioning for each telephone call initiated or received before captioning is provided.

(ii) Each IP CTS provider shall ensure that each IP CTS telephone they distribute, directly or indirectly, shall include a button, icon, or other comparable feature that is easily operable and requires only one step for the consumer to turn on captioning.

(iii) For software applications on mobile phones, laptops, tablets, computers or other similar devices, the requirements of this paragraph (c)(10) are satisfied so long as:

(A) Consumers must log in to access the IP CTS software feature with a unique ID and password, and

(B) The default setting switches to captions on only while the consumer is logged in, and does not remain on indefinitely.

(iv) Hardship exception. If a consumer has a cognitive or physical disability that significantly impedes the ability of the consumer to turn on captioning at the start of each call, the IP CTS provider may set that consumer's IP CTS telephone to have a default of captions on, provided that the consumer submits, in addition to the self-certification required under paragraphs (c)(9)(ii) or (iii) of this section, the following to the IP CTS provider:

(A) A self-certification, dated and made under penalty of perjury, that the requirement to turn on captioning at the start of each call significantly impedes the consumer's ability to make use of captioned telephone service, provided that such certification shall be made by the consumer's spouse or legal guardian or a person with power of attorney where the consumer is not competent to provide the required self-certification; and

(B) A certification from a licensed, independent, third party physician in good standing, dated and made under penalty of perjury, that the consumer has a physical or mental disability or functional limitation that significantly impedes the consumer's ability to activate captioning at the start of each call, including a brief description of the basis for such statement. Such physician shall be the consumer's primary care physician or a physician whose specialty is such that the physician is qualified to make such certification and shall provide his or her name, title, area of specialty or expertise, and contact information, including address, telephone number, and email address on such certification. Providers shall not accept a certification from any physician referred to the IP CTS user, either directly or indirectly, by any provider of TRS or any officer, director, partner, employee, agent, subcontractor, or sponsoring organization or entity (collectively “affiliate”) of any TRS provider. Nor shall the physician making such certification have any business, family or social relationship with and shall not have received any payment, referral, or other thing of value from the TRS provider or any affiliate of the TRS provider from which the consumer is receiving service.

(C) Each IP CTS provider shall maintain detailed records of all consumers, who, because of a showing of hardship under this section, have been permitted to receive IP CTS equipment with a setting of default captions on, including the dated and signed consumer and physician certifications submitted by each such consumer pursuant to this paragraph (c)(10)(iv), for a period of at least five years after the consumer ceases to obtain service from the provider. Each IP CTS provider shall maintain the confidentiality of such certification information, and may not disclose such certification information or the content of such certification information except as required by law or regulation.

(D) Each IP CTS provider shall submit, on a monthly basis and subject to confidentiality requirements, a report to the Commission on the consumers who have received a hardship exception pursuant to this paragraph (c)(10)(iv), which shall include a list of such newly excepted individuals (with names redacted), including the dates on which each individual registered for IP CTS with the provider and was provided with IP CTS equipment with a default setting of captions on, the area of specialty or expertise of the certifying physician accompanying each hardship certification, and the basis for granting each hardship exception.

(v) 911 Calling. Each IP CTS provider may turn captions on automatically for 911 calls so long as the provider remains in compliance with the provisions of this paragraph (c)(10) for all other types of calls.

(11) IP CTS Equipment. (i) Any IP CTS provider, including its officers, directors, partners, employees, agents, subcontractors, and sponsoring organizations and entities, that provides equipment, software or applications to consumers, directly or indirectly, at no charge or for less than $75, whether through giveaway, sale, loan, or otherwise, on or after September 30, 2013 shall be ineligible to receive compensation for minutes of IP CTS use generated by consumers using such equipment. An IP CTS provider may provide software or applications at no charge or for less than $75 to a consumer who has already paid a minimum of $75 for equipment, software or applications to that IP CTS provider without affecting the IP CTS provider's eligibility to receive compensation for minutes of IP CTS use generated by that consumer. This paragraph (c)(11)(i) of this section shall not apply in instances where the consumer has obtained IP CTS equipment from a local, state, or federal governmental program.

(ii) No person shall use IP CTS equipment or software with the captioning on, unless:

(A) Such person is registered to use IP CTS pursuant to paragraph (c)(9) of this section; or

(B) Such person was an existing IP CTS user as of March 7, 2013, and either paragraph (c)(9)(xi) of this section is not yet in effect or the registration deadline in paragraph (c)(9)(xi) of this section has not yet passed.

(iii) IP CTS providers shall ensure that any newly distributed IP CTS equipment has a label on its face in a conspicuous location with the following language in a clearly legible font: “FEDERAL LAW PROHIBITS ANYONE BUT REGISTERED USERS WITH HEARING LOSS FROM USING THIS DEVICE WITH THE CAPTIONS ON.” For IP CTS equipment already distributed to consumers by any IP CTS provider as of the effective date of this paragraph, such provider shall distribute to consumers equipment labels with the same language as mandated by this paragraph for newly distributed equipment, along with clear and specific instructions directing the consumer to attach such labels to the face of their IP CTS equipment in a conspicuous location. For software applications on mobile phones, laptops, tablets, computers or other similar devices, IP CTS providers shall ensure that, each time the consumer logs into the application, the notification language required by this paragraph appears in a conspicuous location on the device screen immediately after log-in.

Note to paragraph (c)(11)(iii):

The deadline for compliance with the requirement for IP CTS providers to distribute to consumers equipment labels along with instructions for applying the labels to equipment already distributed to consumers shall be thirty days after OMB approval has been obtained. The FCC will publish a notice of the effective date along with a corrective amendment to specify the deadline for compliance.

(iv) IP CTS providers shall maintain, with each consumer's registration records, records describing any IP CTS equipment provided, directly or indirectly, to such consumer, stating the amount paid for such equipment, and stating whether the label required by paragraph (c)(11)(iii) of this section was affixed to such equipment prior to its provision to the consumer. For consumers to whom IP CTS equipment was provided directly or indirectly prior to the effective date of this paragraph (c)(11), such records shall state whether and when the label required by paragraph (c)(11)(iii) of this section was distributed to such consumer. Such records shall be maintained for a minimum period of five years after the consumer ceases to obtain service from the provider.

(F) In the case of applicants to provide IP CTS or IP CTS providers, a description of measures taken by such applicants or providers to ensure that they do not and will not request or collect payment from the TRS Fund for service to consumers who do not satisfy the registration and certification requirements in § 64.604(c)(9), and an explanation of how these measures provide such assurance.

The U.S. Office of Personnel Management is issuing proposed regulations to amend its current regulations on compensatory time off for religious observances. The proposal would clarify employee and agency responsibilities, provide timeframes for earning and using religious compensatory time off, and define key terms. In addition, we are making other miscellaneous changes in the pay and leave area.

DATES:

Comments must be received on or before October 29, 2013.

ADDRESSES:

You may submit comments, identified by RIN number “3206-AL55,” using any of the following methods:

David Barash, by telephone at (202) 606-2858; by fax at (202) 606-0824; or by email at pay-leave-policy@opm.gov.

SUPPLEMENTARY INFORMATION:

Based on comments we received on our proposed regulations issued on January 5, 2005 (70 FR 1068), recent recommendations made in the U.S. Government Accountability Office's report entitled “Religious Compensatory Time: Office of Personnel Management Action Needed to Clarify Policies for Agencies” (GAO-13-96, October 12, 2012), and our general experience with the adjustment of work schedules for religious observances (i.e., religious compensatory time off), the U.S. Office of Personnel Management (OPM) is proposing to amend its regulations in 5 CFR part 550, subpart J, Compensatory Time Off for Religious Observances. Under 5 U.S.C. 5550a, OPM is responsible for issuing regulations providing for work schedules under which an employee, whose personal religious beliefs require the abstention from work during certain periods of time, may elect to perform overtime work to make up for time lost for meeting those religious obligations. Any employee who elects to perform such overtime work must be granted equal compensatory time off from his or her scheduled tour of duty (in lieu of overtime pay or other pay that would otherwise apply) for such religious observances, notwithstanding any other provision of law. In summary, the religious compensatory time off authority permits an employee to rearrange work hours to fulfill his or her religious obligations. The intent of our proposal is to help agencies more effectively manage religious compensatory time off by clarifying employee and agency responsibilities, providing timeframes for earning and using religious compensatory time off, and defining key terms.

OPM's current regulations provide only limited rules and information and require agencies to provide opportunities for employees to earn and use religious compensatory time off to the extent that doing so does not interfere with the efficient carrying out of agencies' missions. The regulations also explicitly allow the religious compensatory time off to be earned either before or after the corresponding absence from work. Agencies must keep appropriate records on religious compensatory time off that is earned and used to ensure effective administration of religious compensatory time off.

Previous Proposed Regulations

In 2005, OPM issued proposed regulations to put safeguards in place to address some problems with the administration of the religious compensatory time off program that were surfacing. Those regulations proposed to expand the current regulations to provide more structure and consistency by adding new definitions, allowing agencies to require documentation of the need for religious compensatory time off, and requiring employees to perform additional work within 3 pay periods to make up for religious compensatory time off already used. In addition, the regulations proposed to place limits on an employee's accumulation of earned religious compensatory time off, and to provide rules regarding how agencies must deal with employees who have a negative or positive balance of earned religious compensatory time off when the employee's Federal employment ends or when the employee is transferred to another Federal agency.

Comments on Previous Proposed Regulations

Most of the comments we received on the 2005 proposal focused on the provisions regarding the documentation requirements related to the need for time off and the timeframe limits for earning religious compensatory time off. Several commenters expressed concern that allowing agencies to require documentation of the need for religious compensatory time off would lead to agencies making inappropriate judgments about the legitimacy of these requests for religious compensatory time off. Other commenters believed the proposed regulations were not clear enough about the nature of the documentation that could be required. Meanwhile, some commenters thought the requirement to perform overtime work for purposes of earning religious compensatory time off within 3 pay periods after using advanced compensatory time off was too restrictive. It was noted, for example, that there is a cluster of Jewish religious holidays in the fall during which an employee may need to abstain from work for at least 7 days during a 1-month period. We have reexamined our 2005 proposal and have substantially altered the provisions relating to documentation and timeframes; therefore, we are now reissuing proposed regulations with a request for comments.

Based on the comments we received in 2005, we are striving to balance the protection of an employee's right to practice his or her religious freedoms with management's responsibility to carry out the agency's mission. We believe our proposal balances these needs, and incorporates the comments we received from our 2005 proposal to improve the proposed regulations by (1) increasing the number of pay periods within which an employee can repay advanced religious compensatory time off after using it, and (2) requiring the employee to provide the agency with specific information regarding his or her request to use religious compensatory time off.

Section-by-Section Analysis of Proposed Regulations

OPM continues to believe there is a need for a clearer regulatory structure for the earning and use of religious compensatory time off. However, we found some of the objections to our 2005 proposal were persuasive. Consequently, we are proposing to restructure subpart J of 5 CFR part 550 with eight sections as follows:

Section 550.1001 Purpose. This section sets forth the purpose of the subpart, which is to implement the statutory authority for religious compensatory time off under 5 U.S.C. 5550a.

Section 550.1002 Coverage. The proposed regulations provide that coverage applies to each employee in or under an Executive agency (as defined in 5 U.S.C. 105) who has a scheduled tour of duty.

Employees of the Federal Aviation Administration (FAA) are excluded from coverage under most title 5 provisions, including section 5550a. (See 49 U.S.C. 40122(g).) Employees of the Transportation Security Administration (TSA) are excluded from the same title 5 provisions as FAA employees; thus, they are also not covered by section 5550a. (See 49 U.S.C. 114(n).) Both FAA and TSA may adopt a religious compensatory time off program under their own personnel authorities.

The proposed new coverage section, section 550.1002, also provides that section 5550a and OPM's implementing regulations apply only to employees who have a “scheduled tour of duty.” In 5 U.S.C. 5550a(a), the law prescribes that an employee is granted compensatory time off “from his scheduled tour of duty” when the employee's personal religious beliefs require “the abstention from work during certain periods of time.” A further discussion of the term “scheduled tour of duty” is included in the definition section of this supplementary information.

Section 550.1003 Definitions. This section contains definitions of key terms used in subpart J. These terms are “overtime work,” “rate of basic pay,” “religious compensatory time off,” and “scheduled tour of duty.” All of these proposed definitions are new and are being added to this section.

We are providing further explanation of certain terms that are defined in this section. For the purposes of subpart J, “overtime work” is performed to earn religious compensatory time off and provides no entitlement to overtime pay or other premium pay. “Overtime work” earned as religious compensatory time off is a limited exception that is not considered in applying the premium pay limitations in 5 U.S.C. 5547 and 5 CFR 550.105-550.107. (See 62 Comp. Gen. 589, July 26, 1983.) In contrast, the dollar value of overtime work resulting in compensatory time off in lieu of overtime pay under 5 U.S.C. 5543 is considered to be premium pay in applying those limitations. We are clarifying in the regulations that overtime work is deemed to include (1) work performed by a part-time employee outside of his or her scheduled tour of duty, even if that work is below applicable overtime thresholds (e.g., below 40 hours in a week), and (2) work performed by an employee on a legal holiday.

The term “rate of basic pay” is the rate of pay fixed by law or administrative action for the position held by an employee, including any applicable locality payment under 5 CFR part 531, subpart F; special rate supplement under 5 CFR part 530, subpart C; retained rate under 5 CFR part 536; or similar payment or supplement under other legal authority, before any deductions and exclusive of additional pay of any other kind. It is used in determining the amount paid to an employee upon separation or transfer for any unused hours of religious compensatory time off earned based on the rate of basic pay in effect when the extra hours of work were performed.

“Religious compensatory time off” is compensatory time off for an employee whose personal religious beliefs require that he or she abstain from work at certain times of the workday or workweek. To the extent that modifications in work schedules do not interfere with the efficient accomplishment of an agency's mission, an employee must be permitted to work overtime hours to meet the religious obligation, and such hours do not create any entitlement to premium pay.

A “scheduled tour of duty” means the regular work hours in an established full-time or part-time work schedule during which the employee is charged leave or time off when absent. The law (5 U.S.C. 5550a) specifically refers to employees using religious compensatory time off by taking time off out of their “scheduled tour of duty.” Only employees with an established full-time or part-time schedule have a scheduled tour of duty. Employees who do not have a scheduled tour of duty, such as intermittent employees or leave-exempt Presidential appointees (see 5 CFR 630.211), cannot use leave or other time off, including religious compensatory time off. However, in the spirit of the religious compensatory time off law, supervisors should strive to accommodate such employees in their observance of religious activities required by their personal religious beliefs.

Section 550.1004 Employee responsibilities. This section enumerates an employee's responsibilities when he or she requests to earn and use religious compensatory time off. An employee is required to provide his or her supervisor with a request for religious compensatory time off in advance of the religious observance. Under paragraph (b) of this section, at the time the religious compensatory time off is requested, the employee must provide the agency with (1) the name and/or description of the particular religious observance for which the employee's absence is required; (2) the date(s) and time(s) the employee plans to be absent for religious observances; and (3) the date(s) and time(s) the employee plans to perform overtime work to earn religious compensatory time off to make up for the absence. This information provides appropriate documentation to enable the agency to consider the request. An employee must comply with the agency's procedures for requesting, earning, and using religious compensatory time off, including time limitations, as prescribed in sections 550.1004 and 550.1005.

Section550.1005 Agency responsibilities. This section enumerates agency responsibilities when considering an employee's request to earn and use religious compensatory time off. Paragraph (a) of this section permits an agency to require an employee to submit his or her religious compensatory time off request either orally or in writing, including the information listed in section 550.1004(b), in a manner that is administratively acceptable to the agency. Although this paragraph provides authority for an agency to require an employee to submit his or her request in writing under section 550.1004(b), the agency may allow supervisors to approve requests on a more informal basis as long as the supervisor documents the required information regarding the employee's request.

Paragraph (b) of this section states that an agency is required to approve religious compensatory time off to the extent that modifications in work schedules do not interfere with the efficient accomplishment of its mission, consistent with 5 U.S.C. 5550(c).

Paragraph (c) of this section states that the agency must provide the employee with an opportunity to earn religious compensatory time off before the end of the 26th pay period following the use of the time off. However, the specific timing of when an employee is allowed to earn religious compensatory time off is at the agency's discretion. This is consistent with guidance in former Federal Personnel Manual Letter 550-71, September 29, 1978, which stated that “[A]n agency is expected to accommodate to an employee's request to work compensatory overtime. If no productive overtime is available to be worked by the employee at such time as he or she may initially request, alternative times should be arranged for the performance of the compensatory overtime work.” A key difference between using and earning religious compensatory time off is that using religious compensatory time off is tied to a specific religious observance on a fixed date, whereas greater flexibility exists regarding when religious compensatory time off may be earned. However, the agency must provide an opportunity for the employee to earn religious compensatory time off before the end of 26th pay period after it was used. Agencies have latitude in scheduling exactly when overtime hours will be worked to earn religious compensatory time off.

Section 550.1006 Scheduling time to earn and use religious compensatory time off. This section provides rules for scheduling time to earn and use religious compensatory time off to establish a consistent and effective Governmentwide approach. An employee must inform his or her agency of the date(s) and time(s) he or she plans to be absent for religious observances and the date(s) and time(s) he or she plans to work to earn religious compensatory time off to make up for the absence. The agency must consider its mission requirements when determining whether to approve changes in work schedules for scheduling religious compensatory time off, as explained in section 550.1005.

This section also empowers agencies to require employees who are submitting requests for this time off to make the requests sufficiently in advance to allow for workforce adjustments that may be required to accommodate the religious compensatory time off.

For an employee who earns religious compensatory time off prior to using it, religious compensatory time off may be earned up to 26 pay periods in advance of the pay period in which it is intended to be used, as long as the scheduling of religious compensatory time off is linked to specific dates and times and its scheduling is compatible with agency mission requirements. While most agencies may have always required employees to identify specific, future religious observances as a condition for allowing them to earn religious compensatory time off, this proposal now provides a common approach, with specific information regarding the details the employee must supply under section 550.1004.

Where an employee uses religious compensatory time off prior to earning it (i.e., spending an equal amount of time in overtime work), that employee must schedule and fulfill his or her obligation to perform overtime work in exchange for religious compensatory time off within 26 pay periods (52 weeks) after the pay period in which he or she used religious compensatory time off. The 26 pay periods are calculated beginning with the first pay period after the pay period in which the religious compensatory time off was used.

OPM believes that providing 26 pay periods before and after a religious observance is a sufficient timeframe for an employee to earn religious compensatory time, and is consistent with the 26 pay period rule for using compensatory time off in lieu of overtime pay after it is earned.

If the employee fails to perform overtime work in exchange for advanced religious compensatory time off within 26 pay periods after the pay period in which it was used, section 550.1006(c) provides that the agency may take corrective action to eliminate or reduce the negative balance by making a corresponding reduction in the employee's annual leave balance. Any remaining negative balance must be resolved by charging the employee leave without pay, which will result in an indebtedness that is subject to the agency's internal debt collection procedures. This approach is consistent with OPM's longstanding position that if an employee has taken advanced religious compensatory time off and has a negative balance, the employee must be charged annual leave or leave without pay to account for that negative balance. (See also the more detailed discussion regarding section 550.1008(b).)

OPM reminds agencies and employees of the availability of additional workforce flexibilities, including annual leave, advanced annual leave, regular compensatory time off, alternative work schedules, and leave without pay, all of which may play a part in accommodating an employee's need to abstain from work for religious observances. We believe providing 26 pay periods for employees to repay such advanced religious compensatory time off, permitting employees to perform work in advance of a religious observance, and using other existing workforce flexibilities will provide employees with several viable alternatives for meeting religious requirements, while ensuring agencies are able to carry out their missions in a timely manner.

Section 550.1007 Accumulation and documentation. This section requires agencies to keep appropriate records on the amount of religious compensatory time off each employee earns and uses. The agency must credit religious compensatory time off for work performed on a time-for-time basis, under an agency's time and attendance procedures. Except as provided in paragraph (c) of section 550.1007, an employee may accumulate only the amount of religious compensatory time off needed to cover an approved absence for a religious observance or an anticipated absence for a future religious observance for specific dates and times that the employee has identified.

Under section 550.1007(c), if the employee does not use his or her earned religious compensatory time off as planned, the employee may not earn any additional religious compensatory time off until the retained amount of religious compensatory time off has been used or the need to earn additional religious compensatory time off has been established and documented. In other words, earned religious compensatory time off that has not been used as planned may be applied toward a future religious observance that has been properly requested and approved—even if that event is more than 26 pay periods after when the religious compensatory time off was originally earned. If the number of hours of unused religious compensatory time off is not sufficient to cover the future religious observance, the employee may earn additional religious compensatory time off to cover extra hours—either 26 pay periods before or after the pay period in which the employee takes time off for the approved future religious observance, as provided in section 550.1006.

For example, an employee earns 16 hours of religious compensatory time off toward religious observance “A.” The employee is unable to use the 16 hours as planned due to unforeseen circumstances. The employee then requests and receives approval for religious observance “B.” The employee needs an additional 8 hours to attend the new religious observance. The 16 hours of earned religious compensatory time off from religious observance “A” may be applied toward 24 hours needed for religious observance “B.” The employee may earn the additional 8 hours of religious compensatory time off within 26 pay periods before or after religious observance “B” to cover the religious observance.

Agencies must monitor any accumulation to ensure that the employee is using the religious compensatory time off for the intended religious observance and is not stockpiling the compensatory time off for purposes that do not meet the intent of the law and regulations.

Section 550.1008 Employee separation or transfer. This section addresses how positive and negative balances of religious compensatory time off are to be treated when employees leave Federal service or transfer to another Federal agency. In the case of an employee with a positive balance who is separating from Federal service or transferring to another Federal agency, the losing agency pays the employee at the hourly rate of basic pay in effect when the religious compensatory time off was earned. Though OPM has published this disposition procedure as guidance on its Web site, it is now including it in the regulations to ensure compliance throughout the Federal Government.

Any earned religious compensatory time off may be paid only when an employee separates or transfers to another Federal agency. Religious compensatory time off cannot be forfeited, nor can it be paid out as compensatory time off in lieu of overtime or any other forms of time off. Since religious compensatory time off is earned and approved for specific dates and times, the amount of religious compensatory time off paid out in a lump sum should be minimal.

Regarding the case of an employee with a negative balance of religious compensatory time off who is separating from Federal service or transferring to another Federal agency under 5 CFR 550.1008(b), an agency may take corrective action to eliminate or reduce the negative balance by making a corresponding charge of annual leave. In other words, since the religious compensatory time off was never earned by working overtime hours, the prior use of religious compensatory time off was invalid. Accordingly, the hours improperly used as religious compensatory time off would be converted to annual leave hours by reducing the employee's annual leave balance. Any negative balance remaining after charging annual leave would be resolved by charging leave without pay. The resulting indebtedness is subject to the agency's internal debt collection procedures. The losing agency is required to determine the monetary value of the employee's remaining negative balance and use applicable debt collection procedures (e.g., those authorized under 5 U.S.C. 5514 and applicable agency regulations prepared consistent with subpart K of 5 CFR part 550). The same approach applies to employees covered by section 550.1006(c) who fail to earn advanced religious compensatory time off within 26 pay periods after using religious compensatory time off.

It should be noted that, unlike annual and sick leave, there is no statutory authority to provide for a transfer of unused earned religious compensatory time off when an employee transfers to another agency. Therefore, the proposed regulations do not authorize employees to transfer a balance of earned religious compensatory time off when they move to another agency.

Section 550.1009 Relationship to premium pay and overtime work. This section makes explicit that an employee who earned religious compensatory time off under subpart J will have no entitlement to overtime pay or other premium pay based on the overtime work performed. It further clarifies that religious compensatory time off under subpart J is fundamentally different from other types of compensatory time off in that religious compensatory time off is only for the purpose of adjusting an employee's work schedule so that the employee may perform overtime work to take time off for religious observances, and such time off is not considered premium pay, as defined in section 550.103.

We are also taking this opportunity to make the following miscellaneous regulatory changes that are unrelated to compensatory time off for religious observances:

We propose amending the definition of rate of basic pay in 5 CFR 550.103 to include a retained rate under 5 CFR part 536. This is consistent with the provision in 5 CFR 536.307(a)(3) that a retained rate is considered to be an employee's rate of basic pay for the purpose of computing premium pay under 5 U.S.C. chapter 55, subchapter V, and 5 CFR part 532 and part 550, subparts A and I.

Section 550.1302 Miscellaneous Change to Citation Referenced in the Definition of Firefighter

In section 550.1302, we are correcting a citation referencing section 362.203(e) in paragraph (2)(iii) of the definition of firefighter. The correct citation is section 362.203(f).

E.O. 13563 and E.O. 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Orders 13563 and 12866.

Regulatory Flexibility Act

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will apply only to Federal agencies and employees.

2. In § 550.103, revise the definition of rate of basic pay to read as follows:§ 550.103 Definitions.

Rate of basic pay means the rate of pay fixed by law or administrative action for the position held by an employee, including any applicable locality payment under 5 CFR part 531, subpart F; special rate supplement under 5 CFR part 530, subpart C; retained rate under 5 CFR part 536; or similar payment or supplement under other legal authority, before any deductions and exclusive of additional pay of any other kind.

3. Revise subpart J to read as follows:Subpart J—Compensatory Time Off for Religious ObservancesSec.550.1001 Purpose.550.1002 Coverage.550.1003 Definitions.550.1004 Employee responsibilities.550.1005 Agency responsibilities.550.1006 Scheduling time to earn and use religious compensatory time off.550.1007 Accumulation and documentation.550.1008 Employee separation or transfer.550.1009 Relationship to premium pay and overtime work.Authority:

5 U.S.C. 5550a.

Subpart J—Compensatory Time Off for Religious Observances§ 550.1001 Purpose.

This subpart implements 5 U.S.C. 5550a, which permits an employee whose personal religious beliefs require the abstention from work during certain periods of time to elect to engage in overtime work and earn a special form of compensatory time off to make up for the time lost in meeting those religious requirements. Religious compensatory time off differs from other forms of compensatory time off in that the sole purpose is to adjust an employee's work schedule to accommodate a religious observance. The employee earns religious compensatory time off by spending an equal amount of time in overtime work either before or after taking time from the employee's scheduled tour of duty to meet religious requirements.

§ 550.1002 Coverage.

This subpart applies to each employee in or under an Executive agency (as defined in 5 U.S.C. 105) who has a scheduled tour of duty.

§ 550.1003 Definitions.

In this subpart:

Overtime work means work performed by an employee outside his or her scheduled tour of duty for the purpose of making up time lost for meeting religious requirements, for which overtime pay would normally be payable. It is also deemed to include work performed by a part-time employee outside of his or her scheduled tour of duty, even if that work is below applicable overtime thresholds (e.g., below 40 hours in a week), and work performed by an employee on a legal holiday.

Rate of basic pay means the rate of pay fixed by law or administrative action for the position held by an employee, including any special rate under 5 CFR part 530, subpart C; locality rate under 5 CFR part 531, subpart F; retained rate under 5 CFR part 536; or similar rate under other legal authority, before any deductions and excluding additional pay of any other kind. For example, a rate of basic pay does not include additional pay such as night shift differentials under 5 U.S.C. 5343(f) or environmental differentials under 5 U.S.C. 5343(c)(4).

Religious compensatory time off means compensatory time off, as authorized by 5 U.S.C. 5550a, under which an employee whose personal religious beliefs require the abstention from work during certain periods of time may elect to perform overtime work in order to make up for time the employee takes off to meet those religious requirements. An employee approved to perform overtime work under this subpart will be granted an equal amount of compensatory time off from his or her scheduled tour of duty (in lieu of overtime pay or other pay otherwise payable) to meet his or her religious obligations.

Scheduled tour of duty means the regular work hours in an established full-time or part-time work schedule during which the employee is charged leave or time off when absent.

§ 550.1004 Employee responsibilities.

(a) An employee is required to provide his or her supervisor with a request for religious compensatory time off in advance of the religious observance by following the agency's procedures established in accordance with §§ 550.1005 and 550.1006.

(b) At the time the religious compensatory time off is requested, the employee must provide the agency with the following information:

(1) The name and/or description of the religious observance for which the employee's absence from work is required based on the employee's personal religious beliefs;

(2) The date(s) and time(s) the employee plans to be absent to participate in the religious observances identified in paragraph (b)(1) of this section; and

(3) The date(s) and time(s) the employee plans to perform overtime work to earn religious compensatory time off to make up for the absence.

(c) An employee must comply with the agency's procedures for requesting religious compensatory time off, including any time limitations prescribed under § 550.1006.

§ 550.1005 Agency responsibilities.

(a) An agency may require an employee to submit his or her request to use religious compensatory time off in writing (including electronic communications) with all the information specified in § 550.1004(b) in a manner that is administratively acceptable to the agency. If the agency accepts an oral request, the supervisor must document all the information specified in § 550.1004(b). An agency may require an employee to submit a request to use religious compensatory time off sufficiently in advance to accommodate necessary scheduling changes without interfering with the agency's ability to efficiently carry out its mission.

(b) An agency must approve an employee's request to use religious compensatory time off unless the agency determines that approving the request would interfere with the agency's ability to efficiently carry out its mission.

(c) The agency must provide the employee with an opportunity to earn religious compensatory time off before the end of the 26th pay period following the use of the time off, although the specific timing of when an employee will be allowed to earn religious compensatory time off by performing overtime work is a matter of agency discretion based on the needs of the agency.

§ 550.1006 Scheduling time to earn and use religious compensatory time off.

(a) The scheduling of time to earn and use religious compensatory time off by an employee is subject to the agency's approval as provided in § 550.1005.

(b) For an employee who earns religious compensatory time off prior to using it, religious compensatory time off may be earned up to 26 pay periods in advance of the pay period in which the targeted religious observance commences and must be linked to specific dates and times for future use, as compatible with agency mission requirements.

(c)(1) An employee who uses religious compensatory time off prior to earning it must fulfill his or her obligation to perform overtime work in exchange for the advanced religious compensatory time off within 26 pay periods after the pay period in which he or she used religious compensatory time off, or the agency must take action as provided in paragraph (c)(3) of this section.

(2) The 26 pay periods described in paragraph (c)(1) of this section are calculated beginning with the first pay period beginning after the date on which the religious compensatory time off was used.

(3) If the employee fails to earn religious compensatory time off within 26 pay periods after taking religious compensatory time off, the agency may take corrective action to eliminate or reduce the negative balance by making a corresponding reduction in the employee's annual leave balance. Any negative balance of religious compensatory time off remaining after charging annual leave must be resolved by charging the employee leave without pay, which would result in an indebtedness that is subject to the agency's internal debt collection procedures.

§ 550.1007 Accumulation and documentation.

(a) Agencies must keep appropriate records of the name and/or description of the religious observance, and the dates, times, and amount of religious compensatory time off each employee earns and uses. An agency must credit religious compensatory time off for work performed on a time-for-time basis, under its time and attendance procedures.

(b) Except as provided in paragraph (c) of this section, an employee may accumulate only the amount of religious compensatory time off needed to cover an approved absence for a religious observance that has already occurred or to cover an approved absence for a future religious observance. An employee may only accumulate the amount of religious compensatory time off needed to cover the specific dates and times for which the employee has submitted a request for religious compensatory time off under § 550.1004.

(c) If the employee does not use his or her earned religious compensatory time off as planned—

(1) The positive balance of unused compensatory time off may be redirected toward a future religious observance that has been approved, even if that future observance is more than 26 pay periods after the compensatory time off was originally earned (notwithstanding § 550.1006(b));

(2) The employee may not earn any additional religious compensatory time off until the retained amount of religious compensatory time off has been used or the need to earn additional religious compensatory time off has been properly established and documented.

§ 550.1008 Employee separation or transfer.

(a) Upon an employee's separation from Federal service or transfer to another Federal agency, the losing agency must compensate the employee for any positive balance of earned religious compensatory time off to his or her credit. The agency must pay the employee for hours of earned religious compensatory time off at the hourly rate of basic pay in effect at the time religious compensatory time off was earned.

(b) For an employee who has a negative balance of religious compensatory time off upon an employee's separation from Federal service or transfer to another Federal agency, the losing agency may take corrective action to eliminate or reduce the negative balance by making a corresponding reduction in the employee's annual leave balance. Any negative balance of religious compensatory time off remaining after charging annual leave must be resolved by charging the employee leave without pay, which would result in an indebtedness that is subject to the agency's internal debt collection procedures.

(c) For purposes of applying paragraphs (a) and (b) of this section, an hourly rate of basic pay is computed by dividing the annual rate of basic pay by 2,087 hours (or 2,756 hours for firefighter hours subject to that divisor under subpart F of this part).

§ 550.1009 Relationship to premium pay and overtime work.

The premium pay provisions for overtime work in subpart A of this part and section 7 of the Fair Labor Standards Act of 1938, as amended (FLSA), do not apply to overtime work performed by an employee that is used to earn religious compensatory time off under this subpart. The overtime hours worked to earn religious compensatory time off under this subpart do not create an entitlement to premium pay (including overtime pay) under subpart A of this part or FLSA overtime pay under 5 CFR part 551. Religious compensatory time off is not considered in applying the premium pay limitations described in §§ 550.105, 550.106, and 550.107 of this part.

Subpart M—Firefighter Pay4. The authority citation for subpart M of part 550 continues to read as follows:Authority:

5 U.S.C. 5545b, 5548, and 5553.

5. In § 550.1302, revise paragraph (2)(iii) of the definition of “firefighter” to read as follows:§ 550.1302 Definitions.

Firefighter * * *

(2) * * *

(iii) Covered by the General Schedule and classified in the GS-0099, General Student Trainee Series (as required by § 362.203(f) of this chapter), if the position otherwise would be classified in the GS-0081 series.

We are requesting your comments on whether and how we should revise the criteria in our Listing of Impairments (listings) for evaluating hearing loss and disturbances of labyrinthine-vestibular function in adults and children. We are requesting your comments as part of our ongoing effort to ensure that our listings reflect current medical knowledge. If we propose specific revisions, we will publish a notice of proposed rulemaking in the Federal Register.

DATES:

To ensure that we consider your comments, we must receive them by no later than October 29, 2013.

ADDRESSES:

You may submit comments by any one of three methods—Internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2012-0075 so that we may associate your comments with this ANPRM.

Caution: You should be careful to include in your comments only information that you wish to make publicly available. We strongly urge you not to include in your comments any personal information, such as Social Security numbers or medical information.

1. Internet: We strongly recommend that you submit your comments via the Internet. Visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function to find docket number SSA-2012-0075. The system will issue you a tracking number to confirm your submission. You will not be able to view your comment immediately because we must post each comment manually. It may take up to a week for your comment to be viewable.

Comments are available for public viewing on the Federal eRulemaking portal at http://www.regulations.gov or in person, during regular business hours, by arranging with the contact person identified below.

We are publishing this ANPRM as part of our ongoing effort to ensure that our listing criteria reflect current medical knowledge. This ANPRM gives you an opportunity to send us your comments and suggestions on revisions to the introductory text sections 2.00B and 102.00B and the listings and other criteria in sections 2.00 and 102.00 for evaluating hearing loss and disturbances of labyrinthine-vestibular function. We last published final rules revising the criteria that we use to evaluate hearing disorders on June 2, 2010.1 We last published final rules with the criteria we use to evaluate disturbances in labyrinthine-vestibular function on December 6, 1985.2

1 75 FR 30693.

2 50 FR 50068.

On which rules are we inviting comments and suggestions?

We are inviting comments and suggestions on our current rules which you can find in sections 2.00 and 102.00 in the listings in appendix 1 to subpart P of part 404 of our regulations, on the Internet at http://www.ssa.gov/OP_Home/cfr20/404/404-app-p01.htm.

Who should send us comments and suggestions?

We invite comments and suggestions from people who apply for or receive benefits from us, advocates and organizations that represent people who have hearing disorders or disturbances of labyrinthine-vestibular function, State agencies that make disability determinations for us, experts in the evaluation of hearing disorders, researchers, and other members of the general public.

What should you comment about?

We are interested in any comments and suggestions on how we might revise introductory text sections 2.00B and 102.00B, listing 2.07 for evaluating disturbances of labyrinthine-vestibular function, and listings 2.10, 2.11, 102.10, and 102.11 for evaluating hearing loss. For example:

• Do the rules for evaluating hearing loss or disturbances of labyrinthine-vestibular function contain technical language or jargon that is not clearly explained? If not clearly explained, what technical language or jargon needs further explanation?

• Are the requirements for otological examinations and audiometric testing provided in sections 2.00B and 102.00B clearly stated? If not clearly stated, what requirements need further clarification?

• What types of testing should we consider when evaluating hearing loss in adults or children who cannot cooperate in behavioral testing?

• Would it be helpful to add a sample audiogram that contains all the requirements necessary for evaluation of hearing loss in adults or children?

• What word recognition tests other than the Hearing in Noise Test (HINT) or the Hearing in Noise Test—Children (HINT-C) should we consider when we evaluate hearing loss treated with cochlear implantation?

• Should we provide examples of medical reasons for a discrepancy between the speech reception threshold and the pure tone average?

• Could we improve clarity by replacing the phrase “disturbances in labyrinthine-vestibular function” with the phrase “disturbances of inner ear function”?

• Rather than evaluating disturbances in labyrinthine-vestibular function in adults under the listings, would evaluating disturbances in labyrinthine-vestibular function using residual functional capacity 3 improve the determination process?

3 Residual functional capacity describes what a person can still do despite his or her impairment(s). 20 CFR 404.1545 and 416.945.

• Should we continue to evaluate disturbances of labyrinthine-vestibular function under the Special Senses and Speech body system?

• What else could we do to make the rules for evaluating hearing or disturbances in labyrinthine-vestibular function easier to understand?

• Would a different format make the rules easier to understand (for example, changing the grouping or ordering of sections; use of headings; paragraphing; use of diagrams; use of tables)?

• Experts who study disability believe that many personal, environmental, educational, and social factors contribute in significant ways to the relationship between a person's hearing ability and the ability to work. Rather than providing criteria for evaluating hearing loss in adults under the listings, should we evaluate all hearing loss using residual functional capacity?

Will we respond to your comments from this notice?

We will consider all comments and suggestions we receive. However, we will not respond directly to the comments you send in response to this ANPRM.

What will we consider when we decide whether to propose revisions?

When we decide whether to propose revisions to our rules for evaluating hearing loss or disturbances in labyrinthine-vestibular function, we will consider:

• All comments and suggestions we receive in response to this notice;

• Information about advances in medical knowledge, treatment, and methods of evaluating hearing loss or disturbances in labyrinthine-vestibular function; and

• Our disability program experience.

In addition, we will consider the following when we decide whether to propose revisions to our rules for evaluating labyrinthine-vestibular function:

• The comments and suggestions that we received in response to an ANPRM that we published on April 13, 2005.4

4 Revised Medical Criteria for Evaluating Hearing Impairments and Disturbance of Labyrinthine-Vestibular Function, 70 FR 19353. The comments we received in response to this ANPRM are available at: www.regulations.gov, by searching for docket “SSA-2006-0178”.

• Information we received at a Policy Conference on Hearing Impairments and Disturbance of Labyrinthine-Vestibular Function, held November 7-8, 2005.5

5 The full transcript for the Policy Conference presentations on labyrinthine-vestibular function is available at: http://www.regulations.gov/#!documentDetail;D=SSA-2006-0178-0003.

If we decide to propose specific revisions, we will publish a notice of proposed rulemaking in the Federal Register and you will have a chance to comment on the revisions we propose.

This document cancels a public hearing on proposed regulations that provide guidance to Blue Cross and Blue Shield organizations, and certain other health care organizations, on computing and applying the medical loss ratio added to the Internal Revenue Code by the Patient Protection and Affordable Care Act.

DATES:

The public hearing originally scheduled for September 17, 2013 at 10 a.m. is cancelled.

A notice of proposed rulemaking and a notice of public hearing that appeared in the Federal Register on May 13, 2013 (78 FR 27873) announced that a public hearing was scheduled for September 17, 2013, at 10 a.m. in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue NW., Washington, DC. The subject of the public hearing is under section 833 of the Internal Revenue Code.

The public comment period for these regulations expired on August 12, 2013. The notice of proposed rulemaking and notice of public hearing instructed those interested in testifying at the public hearing to submit a request to speak and an outline of the topics to be addressed. As of Monday, August 26, 2013, no one has requested to speak. Therefore, the public hearing scheduled for September 17, 2013, is cancelled.

This document contains proposed amendments to the regulations that provide user fees for installment agreements and offers in compromise. The proposed amendments affect taxpayers who wish to pay their liabilities through installment agreements and offers in compromise. This document also provides a notice of public hearing on these proposed amendments to the regulations.

DATES:

Written or electronic comments must be received by September 30, 2013. Outlines of topics to be discussed at the public hearing scheduled for October 1, 2013, at 10 a.m. must be received by September 30, 2013.

The Independent Offices Appropriations Act (IOAA), which is codified at 31 U.S.C. 9701, authorizes agencies to prescribe regulations that establish charges for services provided by the agencies (user fees). The charges must be fair and must be based on the costs to the government, the value of the service to the recipient, the public policy or interest served, and other relevant facts. The IOAA provides that regulations implementing user fees are subject to policies prescribed by the President. Those policies are currently set forth in the Office of Management and Budget (OMB) Circular A-25, 58 FR 38142 (July 15, 1993) (the OMB Circular).

The OMB Circular encourages agencies to charge user fees for government-provided services that confer benefits on identifiable recipients over and above those benefits received by the general public. Under the OMB Circular, an agency that seeks to impose a user fee for government-provided services must calculate its full cost of providing those services. In general, the amount of a user fee should recover the cost of providing the service, unless OMB grants an exception.

Installment Agreements

Section 6159 of the Internal Revenue Code (Code) authorizes the IRS to enter into an agreement with any taxpayer for the payment of tax in installments. 26 CFR 301.6159-1. Before entering into an installment agreement, the IRS may examine the taxpayer's financial position to determine whether such an agreement is appropriate. Once the agreement is in effect, the IRS must process the payments and monitor compliance. Section 6331(k)(2) of the Code generally prohibits the IRS from levying to collect taxes while a request to enter into an installment agreement is pending, and if rejected for 30 days thereafter, and, if a timely appeal of rejection is filed, for the duration of the appeal. Section 6331(k)(2) of the Code also generally prohibits the IRS from levying to collect taxes while an installment agreement is in effect. A taxpayer that enters into an installment agreement therefore receives a special benefit of being allowed to pay an outstanding tax obligation over time.

Under sections 300.1 and 300.2 of the Treasury Regulations, the IRS currently charges $105 for entering into an installment agreement, except that the fee is $52 for a direct debit installment agreement, which is an agreement whereby the taxpayer authorizes the IRS to request the monthly electronic transfer of funds from the taxpayer's bank account to the IRS, and the fee is $43 if the taxpayer is a low-income taxpayer (notwithstanding the method of payment). Also, the IRS currently charges $45 for restructuring or reinstating an installment agreement that is in default. The amount of the fees has not changed since 2007. As required by the OMB Circular, the IRS recently completed a routine review of the installment agreement program and determined that the full cost of an installment agreement is $282, except that the cost is only $122 for a direct debit installment agreement. The IRS also determined that the full cost of restructuring or reinstating an installment agreement is $85.

In accordance with the OMB Circular, these proposed amendments to the regulations increase the installment agreement fees to recover more of the costs associated with such agreements. The proposed regulations propose to charge less than full cost. While agencies are generally required to charge full cost, the OMB Circular permits exceptions to this requirement when the cost of collecting the fees would represent an unduly large part of the fee for the activity or any other condition exists that, in the opinion of the agency head or his designee, justifies an exception. OMB has granted an exception to the full cost requirement of the OMB Circular. After discussions with OMB, the proposed fee for entering into an installment agreement is $120, and the proposed fee for restructuring or reinstating an installment agreement is $50. The fee for a direct debit installment agreement remains $52, and low income taxpayers, as defined in 26 CFR 300.1(b)(2), would continue to pay $43 for any new installment agreement, including a direct debit installment agreement. The proposed regulations do not increase the fee for direct debit installment agreements because these agreements have a significantly higher completion rate. The proposed fees balance the need to recover costs with the goals of encouraging the use of installment agreements in general and direct debit installment agreements in particular.

Offers in Compromise

Section 7122 of the Internal Revenue Code gives the Secretary the authority to compromise any civil or criminal case arising under the internal revenue laws, prior to the referral of that case to the Department of Justice. An offer to compromise may be accepted if there is doubt as to liability, if there is doubt as to collectibility, or if acceptance will promote effective tax administration. 26 CFR 301.7122-1(b). Before accepting an offer to compromise, the IRS must examine the taxpayer's financial position to determine whether such a compromise is appropriate unless it is an offer under section 7122(d)(3)(B) (regarding offers relating only to issues of liability). Once the IRS accepts an offer to compromise, the IRS must process the payments and monitor compliance. When the IRS accepts an offer to compromise, the taxpayer receives the benefit of resolving its tax liabilities for a compromised amount, provided the taxpayer complies with the terms of the compromise agreement. Further, section 6331(k)(1) of the Code generally prohibits the IRS from levying to collect taxes while a request to enter into an offer to compromise is pending, and if rejected for 30 days thereafter, and, if a timely appeal of a rejection is filed, for the duration of the appeal.

Under section 300.3 of the Treasury Regulations, the IRS currently charges $150 for processing an offer to compromise, except that no fee is charged if an offer is based solely on doubt as to liability, or made by a low income taxpayer, as defined in 26 CFR 300.3(b)(1)(ii). Also, the fee is generally applied to the unpaid taxes if the offer is accepted to promote effective tax administration or accepted based on doubt as to collectibility (in this latter case, a determination must be made that collection of an amount greater than the amount offered would create economic hardship). The amount of the fee has not changed since 2003. As required by the OMB Circular, the IRS recently completed a routine review of the offer to compromise program and determined that the full cost of an offer to compromise is $2,718.

In accordance with the OMB Circular, this proposed amendment to the regulations increases the offer to compromise fee to recover more of the costs associated with such offers. These proposed regulations propose to charge less than full cost. While agencies are generally required to charge full cost, the OMB Circular permits exceptions to this requirement when the cost of collecting the fees would represent an unduly large part of the fee for the activity or any other condition exists that, in the opinion of the agency head or his designee, justifies an exception. As with the installment agreement fees, OMB has granted an exception to the full cost requirement of the OMB Circular. After discussions with OMB, the proposed fee for processing an offer to compromise is $186. Low-income taxpayers and taxpayers making offers based solely on doubt as to liability will continue to pay no fee. Also, as now, the fee is generally applied to the unpaid taxes if the offer is accepted to promote effective tax administration or accepted based on doubt as to collectibility (in this latter case, a determination must be made that collection of an amount greater than the amount offered would create economic hardship). The proposed fee balances the need to recover costs with the goal of encouraging offers in compromise.

The new fee rate for both installment agreements and offers in compromise will be effective January 1, 2014.

Special Analyses

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required. This certification is based on the information that follows. The economic impact of these regulations on any small entity would result from the entity being required to pay a fee prescribed by these regulations in order to obtain a particular service. The dollar amount of the fee is not, however, substantial enough to have a significant economic impact on any entity subject to the fee. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Comments and Public Hearing

Before these proposed amendments to the regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the “Addresses” heading. The IRS and Treasury Department request comments on all aspects of the proposed regulations. All comments will be available at www.regulations.gov or upon request.

A public hearing has been scheduled for October 1, 2013, beginning at 10 a.m. in the IRS Auditorium of the Internal Revenue Service Building, 1111 Constitution Avenue NW., Washington, DC 20044. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments and submit an outline of the topics to be discussed and the amount of time to be devoted to each topic (a signed original and eight (8) copies) by September 30, 2013. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

Drafting Information

The principal author of these regulations is Kimberly Barsa of the Office of Associate Chief Counsel (Procedure and Administration).

(b) Fee. The fee for entering into an installment agreement before January 1, 2014, is $105. The fee for entering into an installment agreement on or after January 1, 2014, is $120. A reduced fee applies in the following situations:

Par. 3. In § 300.2, paragraphs (b) and (d) are revised to read as follows:§ 300.2 Restructuring or reinstatement of installment agreement fee.

(b) Fee. The fee for restructuring or reinstating an installment agreement before January 1, 2014, is $45. The fee for restructuring or reinstating an installment agreement on or after January 1, 2014, is $50.

(b) Fee. (1) The fee for processing an offer to compromise before January 1, 2014, is $150. The fee for processing an offer to compromise on or after January 1, 2014, is $186. No fee will be charged if an offer is—

This document contains proposed regulations relating to the requirements for filing certain employee retirement benefit plan statements, returns, and reports on magnetic media. The term magnetic media includes electronic filing, as well as other magnetic media specifically permitted under applicable regulations, revenue procedures, publications, forms, instructions, or other guidance on the IRS.gov Internet Web site. These regulations would affect plan administrators and employers maintaining retirement plans that are subject to various employee benefit reporting requirements under the Internal Revenue Code (Code).

DATES:

Comments and requests for a public hearing must be received by October 29, 2013.

Concerning the proposed regulations, William Gibbs or Pamela Kinard at (202) 622-6060; concerning the submission of comments or to request a public hearing, Oluwafunmilayo Taylor at (202) 622-7180 (not toll-free numbers).

SUPPLEMENTARY INFORMATION: Background

Electronic filing of tax returns benefits taxpayers and the IRS by reducing errors that are more likely to occur during the manual preparation and processing of paper returns. Electronic filing results in faster settling of accounts and better customer service. Requiring that employee retirement benefit plan statements, returns, and reports be filed electronically improves the timeliness and accuracy of the information for both the public and the employee retirement benefit plan community.

Section 6011(e)(1) authorizes the Secretary to prescribe regulations providing the standards for determining which returns must be filed on magnetic media or in other machine-readable form. Section 6011(e)(2)(A) provides that the Secretary may not require any person to file returns on magnetic media unless the person is required to file at least 250 returns during the calendar year. Section 6011(e)(2)(B) requires that the Secretary, prior to issuing regulations requiring these entities to file returns on magnetic media, take into account (among other relevant factors) the ability of the taxpayer to comply at reasonable cost with the requirements of such regulations.

A statement, return, or report filed electronically with an electronic return transmitter in the manner and time prescribed by the Commissioner is deemed to be filed on the date of the electronic postmark given by the return transmitter (that is, a record of the date and time that an authorized electronic return transmitter receives the transmission of a taxpayer's electronically filed document on its host system). Accordingly, if the electronic postmark is timely, the document is considered filed timely although it is received by the IRS after the last date prescribed for filing. See § 301.7502-1(d). Section 414(g) defines a plan administrator as a person specifically so designated by the terms of the plan or, in the event no one is designated: (a) An employer for a single employer plan; (b) an association, committee, joint board of trustees, or other similar group of representatives for a plan maintained by two or more employers or jointly by one or more employers and one or more employee organizations; or (c) such other person as the Secretary of Treasury may prescribe in regulations.

Section 6057(a) requires the plan administrator (within the meaning of section 414(g)) of each plan to which the vesting standards of section 203 of the Employee Retirement Income Security Act of 1974 (ERISA) applies for a plan year to file, within the time prescribed by regulations, a registration statement with the Secretary of the Treasury. The registration statement must set forth the following information relating to the plan: (1) The name of the plan; (2) the name and address of the plan administrator; (3) the name and identifying information of plan participants who separated from service covered by the plan and are entitled to deferred vested retirement benefits; and (4) the nature, amount, and form of deferred vested retirement benefits to which the plan participants are entitled. The form used to file this registration statement is Form 8955-SSA, “Annual Registration Statement Identifying Separated Participants with Deferred Vested Benefits.” Section 6057(b) requires that the plan administrator notify the Secretary of certain changes in the plan, including the name of the plan, the name and address of the plan administrator, the termination of the plan, or any merger or consolidation of the plan with another plan (or the plan's division into two or more plans).

Section 6058(a) generally requires that every employer maintaining a pension, annuity, stock bonus, profit-sharing, or other funded plan of deferred compensation, or the plan administrator within the meaning of section 414(g) of the plan, file an annual return stating such information as the Secretary may by regulations prescribe with respect to the qualification, financial condition, and operations of the plan. The reporting requirement under section 6058(a) is satisfied by filing a return on the Form 5500 series. The Form 5500, “Annual Return/Report of Employee Benefit Plan,” the Form 5500-SF, “Short Form Annual Return/Report of Small Employee Benefit Plan,” and Form 5500-EZ, “Annual Return of One-Participant (Owners and Their Spouses) Retirement Plan,” make up the Form 5500 series.

Section 6059(a) generally requires that a plan administrator of each defined benefit plan to which section 412 applies file the actuarial report described in section 6059(b) for the first plan year for which section 412 applies to the plan and for each third plan year thereafter (or more frequently if the Secretary determines that more frequent reports are necessary). The schedules used to file these actuarial reports are the Schedule SB, “Single-Employer Defined Benefit Plan Actuarial Information,” and the Schedule MB, “Multiemployer Defined Benefit Plan and Certain Money Purchase Plan Actuarial Information,” which are required to be filed as part of the Form 5500 or Form 5500-SF.

On July 21, 2006, the Department of Labor (DOL) published a final rule in the Federal Register (71 FR 41359) requiring electronic filing of the Form 5500 and Form 5500-SF for plans covered by Title I of ERISA for plan years beginning on or after January 1, 2008. On November 16, 2007, the DOL published a final rule in the Federal Register (72 FR 64710) postponing the effective date of the electronic filing mandate so that the mandate applies to plan years beginning on or after January 1, 2009. See 29 CFR § 2520.104a-2. The electronic filing system mandated by DOL is the computerized ERISA Filing Acceptance System (EFAST2).

Filers of the Form 5500 and Form 5500-SF are required to file electronically through EFAST2. Currently, electronic filing is not available for the Form 5500-EZ. However, certain filers that would otherwise file the Form 5500-EZ on paper may instead file the Form 5500-SF electronically through EFAST2. Under the current requirements, plans that are eligible to use the Form 5500-SF to file electronically include plans that cover fewer than 100 participants at the beginning of the plan year and satisfy certain other requirements. See the Instructions to the Form 5500-EZ for information about filing the Form 5500-EZ.

In order to implement DOL's mandate for electronic filing of the Form 5500 and Form 5500-SF, certain items on these forms that relate solely to Code requirements were eliminated. Information on the forms, schedules, and attachments that were eliminated was used by the IRS for compliance purposes. By mandating electronic filing of information, the IRS can obtain valuable plan information that is not currently required to be filed through EFAST2.1 In coordination with DOL, the IRS anticipates adding items on the Form 5500 and Form 5500-SF relating solely to Code requirements. For those filers that are not subject to IRS electronic filing requirements, the IRS plans to provide a paper-only form containing those Code-related items and an alternative method of filing with the IRS.

1 In its published report on September 20, 2011, the Treasury Inspector General for Tax Administration (TIGTA) recommended that the IRS explore regulatory options for mandating electronic filings of annual employee benefit returns for employee benefit retirement plans. TIGTA believed that this would assist the IRS in satisfying its tax administration responsibilities. See “The Employee Plans Function Should Continue Its Efforts to Obtain Needed Retirement Plan Information,” Reference Number 3011-10-108 (September 20, 2011).

Explanation of Provisions I. In General

These regulations provide that a plan administrator (or, in certain situations, an employer maintaining a plan) required by the Code or regulations to file at least 250 returns during the calendar year that includes the first day of the plan year must use magnetic media to file certain statements, returns, and reports under sections 6057, 6058, and 6059. Magnetic media is defined as electronic filing or other media specifically permitted under applicable regulations, revenue procedures, publications, forms, instructions, or other guidance on the IRS.gov Internet Web site. (See § 601.601(d)(2)(ii)(b) of this chapter.)

Filers of the Form 5500 and Form 5500-SF are already required to file the returns electronically through EFAST2. In addition, many filers of the Form 8955-SSA already voluntarily file electronically with the IRS and also are required to file the Form 5500 and Form 5500-SF electronically through EFAST2. The IRS and the Treasury Department have determined that taxpayers should be able to comply at a reasonable cost with the requirement to file statements, returns, and reports on magnetic media.

The determination of whether a filer is required to file at least 250 returns is made by aggregating all returns, regardless of type, that the filer is required to file, including for example, income tax returns, returns required under section 6033, information returns, excise tax returns, and employment tax returns.

The proposed regulations under section 6057 provide that a registration statement under section 6057(a) or notification required under section 6057(b) must be filed on magnetic media if the filer is required by the Code or regulations to file at least 250 returns during the calendar year that includes the first day of the plan year. For purposes of the regulations under section 6057, the term filer means the plan administrator within the meaning of section 414(g).

The proposed regulations under section 6057 provide that if a filer that is required to file electronically fails to do so, the filer is deemed to have failed to file the registration statement or other notification required under section 6057. Section 6652(d)(1) imposes a penalty on the plan administrator for the failure to file a registration statement required under section 6057(a). Section 6652(d)(2) imposes a penalty on the plan administrator for the failure to file a notification required under section 6057(b). The proposed regulations under section 6057 provide that rules under § 301.6652-3(b) apply for purposes of determining whether there is reasonable cause for failure to file a registration statement required under section 6057(a) or notification required under section 6057(b). In addition, rules similar to the rules in § 301.6724-1(c)(3)(ii), regarding undue economic hardship relating to filing on magnetic media, will apply.

III. Form 5500 Series

The proposed regulations under section 6058 provide that a return required under section 6058 must be filed on magnetic media if the filer is required by the Code or regulations to file at least 250 returns during the calendar year that includes the first day of the plan year. The term filer means the employer or employers maintaining the plan and the plan administrator within the meaning of section 414(g). Thus, in applying the 250-return requirement, the returns of the employer or employers maintaining the plan and of the plan administrator are aggregated.

The proposed regulations under section 6058 also provide that, in determining the 250-return requirement, the aggregation rules of section 414(b), (c), (m), and (o) apply to a filer that is, or includes, an employer. Thus, for example, a filer that is a member of a controlled group of corporations within the meaning of section 414(b) must file the Form 5500 series on magnetic media if the aggregate number of returns required to be filed by the controlled group of corporations is at least 250. These aggregation rules also apply to the regulations under sections 6057 and 6059 if the plan administrator is the employer.

The proposed regulations under section 6058 provide that if the filer is required to file electronically but fails to do so, the filer is deemed to have failed to file the Form 5500 series. For a failure to file the Form 5500 series, a penalty under section 6652(e) applies. The proposed regulations under section 6058 provide that rules under § 301.6652-3(b) apply for purposes of determining whether there is reasonable cause for failure to file a return. In addition, rules similar to the rules in § 301.6724-1(c)(3)(ii), regarding undue economic hardship relating to filing on magnetic media, will apply.

IV. Actuarial Reports

The proposed regulations under section 6059 provide that an actuarial report required under section 6059 must be filed on magnetic media if the filer is required by the Code or regulations to file at least 250 returns during the calendar year that includes the first day of the plan year. For purposes of the regulations under section 6059, the term filer means the plan administrator within the meaning of section 414(g).

The proposed regulations under section 6059 provide that if a filer that is required to file electronically fails to do so, the filer is deemed to have failed to file the actuarial report required under section 6059. Section 6692 provides that a plan administrator that fails to file the report required under section 6059 shall pay a penalty for each such failure, unless it is shown that there is reasonable cause for the failure. The proposed regulations under section 6059 provide that rules under § 301.6692-1(c) apply for purposes of determining whether there is reasonable cause for failure to file an actuarial report. In addition, rules similar to the rules in § 301.6724-1(c)(3)(ii), regarding undue economic hardship relating to filing on magnetic media, will apply.

V. Economic Hardship Waiver

These proposed regulations also provide that the Commissioner may waive the requirement to file electronically in cases of undue economic hardship. Because the Treasury Department and the IRS believe that electronic filing will not impose significant burdens on the taxpayers covered by these regulations, the Commissioner anticipates granting waivers of the electronic filing requirement in only exceptional cases. Waivers are anticipated to be particularly rare for the filers of Form 5500 and Form 5500-SF (as well as the schedules attached to those forms), because these filers are already required to file electronically under EFAST2.

Proposed Effective Date

These regulations are proposed to apply for employee retirement benefit plan statements, notifications, returns, and reports required to be filed under sections 6057, 6058, and 6059 for plan years that begin on or after January 1, 2014, but only for filings with a filing deadline (not taking into account extensions) after December 31, 2014.

Special Analyses

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that 5 U.S.C. 533(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. In addition, it is hereby certified that any collection of information contained in this regulation will not have a significant economic impact on a substantial number of small entities, and therefore no flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is required. Pursuant to section 7805(f) of the Internal Revenue Code, these regulations have been submitted to the Office of Chief Counsel for Advocacy of the Small Business Administration for comments on its impact on small businesses.

The certification is based on the fact that §§ 301.6057-1, 301.6058-1, and 301.6059-1 currently require filing with the IRS of information under sections 6057, 6058, and 6059 in accordance with applicable forms, schedules, and accompanying instructions. These proposed regulations merely require that this information be filed electronically by persons required to file at least 250 returns for the calendar year, consistent with section 6011(e)(2)(A), which provides that, in prescribing regulations providing standards for determining which returns must be filed on magnetic media or in other machine-readable form, the Secretary shall not require any person to file returns on magnetic media unless the person is required to file at least 250 returns during the calendar year. Many small entities are unlikely to file 250 returns or more during the calendar year. Filers of the Form 5500 and Form 5500-SF are already required to file the returns electronically through EFAST2 pursuant to DOL regulations. In addition, many filers of the Form 8955-SSA already voluntarily file electronically with the IRS.

Further, if a taxpayer's operations are computerized, reporting in accordance with the regulations should be less costly than filing on paper. The IRS and the Treasury Department have determined that taxpayers should be able to comply at a reasonable cost with the requirement in these regulations to file employee retirement statements, returns, and reports on magnetic media. In addition, the proposed regulations provide that the IRS may waive the electronic filing requirements upon a showing of hardship.

Comments and Requests for Public Hearing

Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the “ADDRESSES” heading. The IRS and the Treasury Department request comments on all aspects of the rules. All comments are available at www.regulations.gov or upon request. A public hearing will be scheduled if requested in writing by any person who timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place of the public hearing will be published in the Federal Register.

Drafting Information

The principal authors of these regulations are William Gibbs and Pamela R. Kinard, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the IRS and the Treasury Department participated in the development of these regulations.

(a) Magnetic media filing requirements under section 6057. A registration statement required under section 6057(a) or a notification required under section 6057(b) with respect to an employee benefit plan must be filed on magnetic media if the filer is required by the Internal Revenue Code or regulations to file at least 250 returns during the calendar year ending with or within the plan year. Returns filed on magnetic media must be made in accordance with applicable revenue procedures, publications, forms, instructions, or other guidance on the IRS.gov Internet Web site. In prescribing revenue procedures, publications, forms, instructions, or other guidance on the IRS.gov Internet Web site, the Commissioner may direct the type of magnetic media filing. (See § 601.601(d)(2)(ii)(b) of this chapter.)

(b) Economic hardship waiver. The Commissioner may waive the requirements of this section in cases of undue economic hardship. The principal factor in determining hardship will be the amount, if any, by which the cost of filing the registration statements or notifications on magnetic media in accordance with this section exceeds the cost of filing the registration statements or notifications on paper or other media. A request for a waiver must be made in accordance with applicable published guidance, publications, forms, instructions, or other guidance on the IRS.gov Internet Web site. (See § 601.601(d)(2)(ii)(b) of this chapter.) The waiver will specify the type of filing (that is, a registration statement or notification under section 6057), and the period to which it applies, and will be subject to such terms and conditions regarding the method of filing as may be prescribed by the Commissioner.

(c) Failure to file. If a filer required to file a registration statement or other notification under section 6057 fails to file the statement or other notification on magnetic media when required to do so by this section, the filer is deemed to have failed to file the statement or other notification. See section 6652(d) for the amount imposed for the failure to file a registration statement or other notification under section 6057. In determining whether there is reasonable cause for the failure to file the registration statement or notification under section 6057, § 301.6652-3(b) and rules similar to the rules in § 301.6724-1(c)(3)(ii) (regarding undue economic hardship related to filing information returns on magnetic media) will apply.

(d) Meaning of terms. The following definitions apply for purposes of this section.

(1) Magnetic media. The term magnetic media means electronic filing, as well as other media specifically permitted under applicable regulations, revenue procedures, or publications, forms, instructions, or other guidance on the IRS.gov Internet Web site. (See § 601.601(d)(2)(ii)(b) of this chapter.)

(2) Registration statement required under section 6057(a). The term registration statement required under section 6057(a) means a Form 8955-SSA (or its successor).

(3) Notification required under section 6057(b). The term notification required under section 6057(b) means either a Form 8955-SSA (or its successor) or a Form 5500 series (or its successor).

(4) Determination of 250 returns—(i) In general. For purposes of this section, a filer is required to file at least 250 returns if, during the calendar year that includes the first day of the plan year, the filer is required to file at least 250 returns of any type, including information returns (for example, Forms W-2 and Forms 1099), income tax returns, employment tax returns, and excise tax returns.

(ii) Definition of filer. For purposes of this section, the term filer means the plan administrator within the meaning of section 414(g). If the plan administrator within the meaning of section 414(g) is the employer, the special rules in § 1.6058-2(d)(3)(iii) will apply.

(e) Example. The following example illustrates the provisions of paragraph (d)(4) of this section:

(f) Effective/applicability date. This section is applicable for registration statements and other notifications required to be filed under section 6057 for plan years that begin on or after January 1, 2014, but only for filings with a filing deadline (not taking into account extensions) after December 31, 2014.

Par. 3. Section 301.6058-2 is added to read as follows: § 301.6058-2 Required use of magnetic media for filing requirements relating to information required in connection with certain plans of deferred compensation.

(a) Magnetic media filing requirements under section 6058. A return required under section 6058 with respect to an employee benefit plan must be filed on magnetic media if the filer is required by the Internal Revenue Code or regulations to file at least 250 returns during the calendar year ending with or within the plan year. Returns filed on magnetic media must be made in accordance with applicable revenue procedures, publications, forms, instructions, or other guidance on the IRS.gov Internet Web site. In prescribing revenue procedures, publications, forms, and instructions, or other guidance on the IRS.gov Internet site, the Commissioner may direct the type of magnetic media filing. (See § 601.601(d)(2)(ii)(b) of this chapter.)

(b) Economic hardship waiver. The Commissioner may waive the requirements of this section in cases of undue economic hardship. The principal factor in determining hardship will be the amount, if any, by which the cost of filing the return on magnetic media in accordance with this section exceeds the cost of filing the returns on paper or other media. A request for a waiver must be made in accordance with applicable published guidance, publications, forms, instructions, or other guidance on the IRS.gov Internet Web site. (See § 601.601(d)(2)(ii)(b) of this chapter.) The waiver will specify the type of filing (that is, a return required under section 6058) and the period to which it applies, and will be subject to such terms and conditions regarding the method of filing as may be prescribed by the Commissioner.

(c) Failure to file. If a filer required to file a return under section 6058 fails to file the return on magnetic media when required to do so by this section, the filer is deemed to have failed to file the return. See section 6652(e) for the addition to tax for failure to file a return. In determining whether there is reasonable cause for failure to file the return, § 301.6652-3(b) and rules similar to the rules in § 301.6724-1(c)(3)(ii) (regarding undue economic hardship related to filing information returns on magnetic media) will apply.

(d) Meaning of terms. The following definitions apply for purposes of this section.

(1) Magnetic media. The term magnetic media means electronic filing, as well as other media specifically permitted under applicable regulations, revenue procedures, or publications, forms, instructions, or other guidance on the IRS.gov Internet Web site. (See § 601.601(d)(2)(ii)(b) of this chapter.)

(2) Return required under section 6058. The term return required under section 6058 means the Form 5500 series (or its successor).

(3) Determination of 250 returns—(i) In general. For purposes of this section, a filer is required to file at least 250 returns if, during the calendar year that includes the first day of the plan year, the filer is required to file at least 250 returns of any type, including information returns (for example, Forms W-2 and Forms 1099), income tax returns, employment tax returns, and excise tax returns.

(ii) Definition of filer. For purposes of this section, the term filer means the employer or employers maintaining the plan and the plan administrator within the meaning of section 414(g).

(iii) Special rules relating to determining 250 returns. For purposes of applying paragraph (d)(3)(ii) of this section, the aggregation rules of section 414(b), (c), (m), and (o) will apply to a filer that is or includes an employer. Thus, for example, a filer that is a member of a controlled group of corporations within the meaning of section 414(b) must file the Form 5500 series on magnetic media if the aggregate number of returns required to be filed by all members of the controlled group of corporations is at least 250.

(e) Example. The following example illustrates the provisions of paragraph (d)(3) of this section:

Example.

In 2014, Employer X (the plan sponsor of Plan A) and P (the plan administrator of Plan A) are required to file 267 returns. Employer X is required to file the following: one Form 1120, “U.S. Corporation Income Tax Return,” 195 Forms W-2, “Wage and Tax Statement,” 25 Forms 1099-DIV, “Dividends and Distributions,” one Form 940, “Employer's Annual Federal Unemployment (FUTA) Tax Return,” and four Forms 941, “Employer's Quarterly Federal Tax Return.” P is required to file 40 Forms 1099-R, “Distributions From Pensions, Annuities, Retirement, Profit-Sharing Plans, IRAs, Insurance Contracts, etc.” P and Employer X are jointly required to file one Form 5500 series. Plan A's plan year is the calendar year. Because P and Employer X, in the aggregate, are required to file at least 250 returns during the calendar year, the 2014 Form 5500 for Plan A must be filed electronically.

(f) Effective/applicability date. This section is applicable for returns required to be filed under section 6058 for plan years that begin on or after January 1, 2014, but only for filings with a filing deadline (not taking into account extensions) after December 31, 2014.

Par. 4. Section 301.6059-2 is added to read as follows:§ 301.6059-2 Required use of magnetic media for filing requirements relating to periodic report of actuary

(a) Magnetic media filing requirements under section 6059. An actuarial report required under section 6059 with respect to an employee benefit plan must be filed on magnetic media if the filer is required by the Internal Revenue Code or regulations to file at least 250 returns during the calendar year ending with or within the plan year. Actuarial reports filed on magnetic media must be made in accordance with applicable revenue procedures, publications, forms, instructions, or other guidance on the IRS.gov Internet Web site. In prescribing revenue procedures, publications, forms, instructions, or other guidance on the IRS.gov Internet Web site, the Commissioner may direct the type of magnetic media filing. (See § 601.601(d)(2)(ii)(b) of this chapter.)

(b) Economic hardship waiver. The Commissioner may waive the requirements of this section in cases of undue economic hardship. The principal factor in determining hardship will be the amount, if any, by which the cost of filing the reports on magnetic media in accordance with this section exceeds the cost of filing the reports on paper or other media. A request for a waiver must be made in accordance with applicable published guidance, publications, forms, instructions, or other guidance on the IRS.gov Internet Web site. (See § 601.601(d)(2)(ii)(b) of this chapter.) The waiver will specify the type of filing (that is, an actuarial report required under section 6059) and the period to which it applies, and will be subject to such terms and conditions regarding the method of filing as may be prescribed by the Commissioner.

(c) Failure to File. If a filer required to file an actuarial report under section 6059 fails to file the report on magnetic media when required to do so by this section, the filer is deemed to have failed to file the report. See section 6692 for the penalty for the failure to file an actuarial report. In determining whether there is reasonable cause for failure to file the report, § 301.6692-1(c) and rules similar to the rules in § 301.6724-1(c)(3)(ii) (regarding undue economic hardship related to filing information returns on magnetic media) will apply.

(d) Meaning of terms. The following definitions apply for purposes of this section.

(1) Magnetic media. The term magnetic media means electronic filing, as well as other media specifically permitted under applicable regulations, revenue procedures, or publications, forms, instructions, or other guidance on the IRS.gov Internet Web site. (See § 601.601(d)(2)(ii)(b) of this chapter.)

(2) Actuarial report required under section 6059—(i) Single employer plans. For a single employer plan, the term actuarial report required under section 6059 means the Schedule SB, “Single-Employer Defined Benefit Plan Actuarial Information,” of the Form 5500 series (or its successor).

(3) Determination of 250 returns—(i) In general. For purposes of this section, a filer is required to file at least 250 returns if, during the calendar year that includes the first day of the plan year, the filer is required to file at least 250 returns of any type, including information returns (for example, Forms W-2 and Forms 1099), income tax returns, employment tax returns, and excise tax returns.

(ii) Definition of filer. For purposes of this section, the term filer means the plan administrator within the meaning of section 414(g). If the plan administrator within the meaning of section 414(g) is the employer, the special rules in § 1.6058-2(d)(3)(iii) will apply.

(e) Example. The following example illustrates the provisions of paragraph (d)(3) of this section:

Example.

In 2014, P, the plan administrator of Plan B (a single employer defined benefit plan), is required to file 266 returns (including Forms 1099-R “Distributions From Pensions, Annuities, Retirement, Profit-Sharing Plans, IRAs, Insurance Contracts, etc.” and one Form 5500 series). Plan B's plan year is the calendar year. Because P is required to file at least 250 returns during the calendar year, P must file the 2014 Schedule SB of the Form 5500 series for Plan B electronically.

(f) Effective/applicability date. This section is applicable for actuarial reports required to be filed under section 6059 for plan years that begin on or after January 1, 2014, but only for filings with a filing deadline (not taking into account extensions) after December 31, 2014.

EPA is proposing to approve a State Implementation Plan (SIP) submittal from the State of Delaware pursuant to the Clean Air Act (CAA). Whenever new or revised national ambient air quality standards (NAAQS) are promulgated, the CAA requires states to submit a plan for the implementation, maintenance, and enforcement of such NAAQS. The plan is required to address basic program elements, including, but not limited to, regulatory structure, monitoring, modeling, legal authority, and adequate resources necessary to assure attainment and maintenance of the standards. These elements are referred to as infrastructure requirements. Delaware has made a submittal addressing the infrastructure requirements for the 2008 8-hour ozone NAAQS. This action proposes to approve portions of this submittal.

DATES:

Written comments must be received on or before September 30, 2013.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2013-0408 by one of the following methods:

D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2013-0408. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Delaware Department of Natural Resources and Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT:

Rose Quinto, (215) 814-2182, or by email at quinto.rose@epa.gov.

SUPPLEMENTARY INFORMATION:

On March 27, 2013, the Delaware Department of Natural Resources and Environmental Control (DNREC) submitted a revision to its SIP to satisfy the requirements of section 110(a)(2) of the CAA for the 2008 8-hour ozone NAAQS.

I. Background

On March 27, 2008 (73 FR 16436), EPA promulgated a revised NAAQS for ozone based on 8-hour average concentrations. EPA revised the level of the 8-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The content of such SIP submission may also vary depending upon what provisions the state's existing SIP already contains.

In the case of the 2008 8-hour ozone NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with the 1997 8-hour ozone NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS.

II. Summary of State Submittal

On March 27, 2013, Delaware provided a submittal to satisfy section 110(a)(2) of the CAA requirements, that is the subject of this proposed rulemaking, for the 2008 8-hour ozone NAAQS. This submittal addressed the following infrastructure elements: Section 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M).

EPA has analyzed the above identified submission and is proposing to make a determination that such submittal meets the requirements of section 110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA, with the exception of the Part D, Title I nonattainment planning requirements of section 110(a)(2)(I), and the portion of the submittal relating to section 110(a)(2)(D)(i)(I) on which EPA will take separate actions. A detailed summary of EPA's review and rationale for approving Delaware's submittal may be found in the Technical Support Document (TSD) for this action which is available on line at www.regulations.gov, Docket number EPA-R03-OAR-2013-0408.

This proposed rulemaking action does not include section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part D, Title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) of the CAA, and will be addressed in a separate process. This proposed rulemaking action also does not address section 110(a)(2)(D)(i)(I) of the CAA. In accordance with the decision of the U.S. Court of Appeals for the District of Columbia (D.C. Circuit Court), EPA at this time is not treating the 110(a)(2)(D)(i)(I) SIP submission from Delaware as a required SIP submission. See EME Homer City Generation, L.P. v. EPA, 696 F .3d 7 (D.C. Cir. 2012), cert. granted, 2013 U.S. Lexis 4801 (2013). On June 24, 2013, the Supreme Court granted the petitions of the United States and others and agreed to review this D.C. Circuit Court decision. However, at this time the D.C. Circuit Court decision remains in place and unless it is reversed or otherwise modified by the Supreme Court, states are not required to submit 110(a)(2)(D)(i)(I) SIPs until EPA has quantified their obligations under that section. EPA will address the portion of Delaware's March 27, 2013 SIP submittal addressing section 110(a)(2)(D)(i)(I) in a separate action.

III. Proposed Action

EPA is proposing to approve Delaware's submittal that provides the basic program elements specified in section 110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M), necessary to implement, maintain, and enforce the 2008 8-hour ozone NAAQS, with the exception of the Part D, Title I nonattainment planning requirements of section 110(a)(2)(I), and the portion of the submittal relating to section 110(a)(2)(D)(i)(I) on which EPA will take separate actions. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

IV. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rulemaking action pertaining to Delaware's section 110(a)(2) infrastructure requirements for the 2008 8-hour ozone NAAQS, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

EPA is proposing to approve revisions to the Placer County Air Pollution Control District (PCAPCD), Santa Barbara County Air Pollution Control District (SBCAPCD) and Ventura County Air Pollution Control District (VCAPCD) portions of the California State Implementation Plan (SIP). These revisions concern volatile organic compound (VOC) emissions from adhesives and sealants. We are proposing to approve local rules to regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).

DATES:

Any comments on this proposal must arrive by September 30, 2013.

ADDRESSES:

Submit comments, identified by docket number EPA-R09-OAR-2013-0453, by one of the following methods:

Instructions: All comments will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through www.regulations.gov or email. www.regulations.gov is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send email directly to EPA, your email address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: Generally, documents in the docket for this action are available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed at www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Andy Steckel, EPA Region IX, (415) 947-4115, Steckel.andrew@epa.gov.

SUPPLEMENTARY INFORMATION:

This proposal addresses the following local rules: PCAPCD Rule 235, Adhesives, SBCAPCD Rule 353, Adhesives and Sealants and VCAPCD Rule 74.20, Adhesives and Sealants. In the Rules and Regulations section of this Federal Register, we are approving these local rules in a direct final action without prior proposal because we believe these SIP revisions are not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. Please note that if we receive adverse comments on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.

This NPRM provides interested parties with the opportunity to comment on proposed regulations that would govern the application requirements for the Surface Transportation Project Delivery Program (Program). The proposed regulations are prompted by enactment of the Moving Ahead for Progress in the 21st Century Act (MAP-21), which converted the Surface Transportation Project Delivery Pilot Program into a permanent program, allows any State to apply for the Program, expanded the scope of the Secretary's responsibilities that may be assigned and assumed under the Program, and created a renewal process for Program participation. The FHWA, FTA, and FRA, hereinafter referred to as the “Agencies,” seek comments on the proposals contained in this NPRM.

DATES:

Comments must be received on or before October 29, 2013.

ADDRESSES:

To ensure that you do not duplicate your docket submissions, please submit them by only one of the following means:

• Instructions: You must include the agency name and docket number or the Regulatory Identification Number (RIN) for the rulemaking at the beginning of your comments. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

Section 6005 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), 109 Public Law 59, 119 Stat. 1144, 1868-1872 (codified at 23 United States Code (U.S.C.) 327), established a pilot program allowing the Secretary to assign, and for certain States to assume, the Federal responsibilities for the review of highway projects under the National Environmental Policy Act of 1969 (NEPA) and responsibilities for environmental review, consultation or other action required under any Federal environmental law pertaining to the review. The pilot program was limited to five States and was set to expire on September 30, 2012. Pursuant to 23 U.S.C. 327(b)(2), FHWA promulgated regulations in part 773 of title 23 of the Code of Federal Regulations (CFR) on the information that States must submit as part of their applications to participate in the pilot program (72 FR 6470 (Feb. 12, 2007)).

On July 6, 2012, President Obama signed into law the Moving Ahead for Progress in the 21st Century Act (MAP-21), Public Law 112-141, 126 Stat. 405, which contains new requirements that the Secretary of Transportation (Secretary) must meet in complying with various environmental requirements. Section 1313 amended 23 U.S.C. 327, by: (1) Converting the pilot program into a permanent program (Program); (2) removing the five-State limit; (3) expanding the scope of assignment and assumption for the Secretary's responsibilities to include railroad, public transportation, and multimodal projects; and (4) allowing a renewal option for program participation. Section 1313 also amended 23 U.S.C. 327(b)(2) by requiring the Secretary to amend—within 270 days from the date of MAP-21's enactment (October 1, 2012)—the regulations concerning the information required in a State's application to participate in the Program. The Agencies are initiating this rulemaking to address that requirement.

General Discussion of the Proposals

This NPRM proposes to revise part 773 in title 23 to account for changes to the Program application process as a result of MAP-21. The NPRM also proposes to to create a new part 264 in title 49 to cross-reference the Program application procedures for the benefit of FRA applicants. Finally, the NPRM proposes to add a reference to 23 U.S.C. 327 and the Program application procedures in 49 CFR part 622, subpart A—Environmental Procedures for the benefit of FTA applicants. The NPRM is limited to the application process and the information the Agencies require from any eligible State interested in applying to the Program. Specifically, the proposal provides for applicant eligibility criteria, projects and responsibilities that are eligible or ineligible for assignment, pre-application procedures, content and submittal procedures for the application, review and approval procedures, and procedures for the renewal of participation in the Program. In addition, the proposal provides a provision on the authority for termination of Program participation. The application requirements would apply to eligible States interested in applying for the Secretary's responsibilities under NEPA and other Federal environmental laws with respect to certain highway, railroad, public transportation, and multimodal projects. As part of this NPRM, the Agencies are seeking input on options for implementing MAP-21's direction to provide for assignment and assumption of environmental review responsibilities with respect to multimodal projects.

Under the Program, an eligible State may apply for the assignment and assumption of the Secretary's responsibilities under NEPA for eligible surface transportation projects. The Secretary's responsibilities under NEPA include making categorical exclusion determinations, developing and issuing environmental assessments (EA), issuing Findings of No Significant Impacts (FONSI), and engaging in the environmental impact statement (EIS) process, including, but not limited to, developing and issuing draft, final, and supplemental EISs, issuing Records of Decision, and engaging in re-evaluations. States also may request the assignment and assumption of the Secretary's responsibilities for environmental reviews, consultations, or other actions required by other Federal environmental requirements pertaining to the review of the eligible surface transportation projects. Examples of such other Federal environmental requirements include evaluations, determinations, and consultations under section 106 of the National Historic Preservation Act (NHPA), section 7 of the Endangered Species Act, and 23 U.S.C. 138 and 49 U.S.C. 303 (section 4(f)). The Secretary has delegated NEPA and other Federal environmental review responsibilities pertaining to the review and approval of highway, railroad, and public transportation projects, as well as the administration and implementation of this Program to the Agencies pursuant to 49 CFR 1.81.

Although a State may submit simultaneous applications, obtaining assignment for the Secretary's environmental review responsibilities for highway projects is a precondition for obtaining assignment of environmental review responsibilities for non-highway projects (i.e., railroad, public transportation, and multimodal projects). Termination of assignment and assumption for responsibilities with respect to highway projects also would terminate assignment and assumption for responsibilities with respect to non-highway projects.

It is important to note that this NPRM is focused on the application procedures for eligible States as required in 23 U.S.C. 327(b)(2). The Agencies have determined that, with the exception of the termination provision, regulations on the implementation of the Program are not needed at this time. As a result, this NPRM does not address other aspects of the Program, such as the auditing and monitoring requirements, content of Memoranda of Understanding (MOU), or responsibilities associated with litigation. The Agencies anticipate developing guidance on these issues in the future.

Section-by-Section Discussion of Changes

This section provides an overview of the proposed changes to 23 CFR part 773 and 49 CFR part 622, and proposed new part 264 in 49 CFR. The Agencies have relied heavily on FHWA's experience in the development and implementation of the current part 773 regulations.

The Agencies propose a title to this part that clearly describes the scope of the part. As discussed above, the NPRM does not address implementation procedures and requirements, other than a termination provision.

Section 773.101—Purpose

The Agencies propose a section to explain the purpose of the Program and to reflect the scope of the Secretary's responsibilities eligible for assignment and State assumption. A notable difference from the current 23 CFR 773.101 is that the proposed section recognizes the expanded responsibilities that can be assigned (i.e., railroad, public transportation, and multimodal projects).

Section 773.103—Definitions

The Agencies propose a section similar to current 23 CFR 773.103 to provide definitions for specific terms that have special significance to an application under this Program. In addition to terms that were originally defined in section 773.103, the Agencies' proposal would add definitions for MOU, multimodal project, NEPA, Operating Administration, public transportation project, and railroad project.

The Agencies propose to define the term “classes of projects” as “either a defined group of projects or all projects to which Federal environmental laws apply.” The proposal is different from the definition of “classes of highway projects” in the current 23 CFR 773.103 because it eliminates the “highway” modifier. Under the Program, a State may request assignment for particular projects and identify them in the application. However, a State also may describe a class of projects instead of or in addition to specific projects. For example, a State requesting and obtaining assignment of “all highway projects located outside the Interstate System” would be responsible for the environmental review of any future highway project fitting the class for the duration of the term of the agreement. The Agencies also may make assignment decisions based on classes of projects. For example, an Agency may decide to retain responsibility for a particular class of projects (e.g., multimodal projects where the State has not received assignment from the other Agencies, projects within or crossing Federal lands, projects within or crossing Tribal lands).

The proposed definition of “Federal environmental law” is similar to the current definition in 23 CFR 773.103. This definition includes Executive Orders, which were added to the final rule definition of “Federal environmental law” in 23 CFR 773.103 (72 FR at 6465). In adding Executive Orders to the current definition in § 773.103, FHWA noted that the purpose of Executive Orders was to improve the internal management and administration of the Executive Branch of the Federal Government and did not create any legally enforceable rights. In adopting this definition, the Agencies reiterate this point and note that nothing in this rulemaking process is intended to change the legal force and effect of any Federal statute, regulation, or Executive Order cited herein. Notable differences between the proposed definition and the current definition in § 773.103 are the explicit inclusion of the terms “railroad,” “public transportation” and “multimodal projects”; deletion of specific references to non-assignability of Clean Air Act (CAA) conformity determinations and the Secretary's transportation planning responsibilities; and deletion of a provision explaining that only those laws that are inherently environmental are assignable. The Agencies propose to move the notification of restrictions (i.e., CAA conformity, transportation planning, and responsibilities that are not inherently environmental) to the eligibility section.

The Agencies propose to define “highway projects” as “any undertaking to construct (including initial construction, reconstruction, replacement, rehabilitation, restoration, or other improvements) a highway, bridge, or tunnel, or any portion thereof, including environmental mitigation activities, which is authorized under title 23 U.S.C. A highway project may include an undertaking that involves a series of contracts or phases, such as a corridor, and also may include anything that may be constructed in connection with a highway, bridge, or tunnel. The term highway project does not include any project authorized under 23 U.S.C. 202, 203, or 204 unless the State will design or construct the project.” This proposed definition is similar to the highway definition in the current 23 CFR 773.103 with the notable difference that it eliminates limitations in the current definition for priority projects under Executive Order 13274, Environmental Stewardship and Transportation Infrastructure Project Reviews and projects receiving funds through chapter 53 of title 49, U.S.C. The Agencies proposed provision in § 773.105(d) would address situations where projects should be retained for various reasons, including designation of priority project status under Executive Order 13274. The exclusion of projects funded through chapter 53 of title 49, U.S.C., has been eliminated because the MAP-21 revisions now authorize the use of the Program for multimodal projects. The Agencies propose to retain the exclusion of Federal Lands Highways projects. Instead of making a reference to Federal Lands Highways, the Agencies propose to reference the provisions authorizing such projects (i.e., 23 U.S.C. 202, 203, and 204). In some limited cases, a State may design and construct a project authorized under these provisions. These would be considered highway projects under the definition, and their assignment would be subject to the conditions established in the agreement.

The proposed definition would not include the last sentence in the highway project term in the current version of 23 CFR part 773. This provision was added in the current part 773 rule to address concerns expressed by Federal agencies that the exclusion of multimodal projects in assignments under the Program would have encouraged participating States to limit the consideration of reasonable alternatives (72 FR 6465). This restriction is no longer needed since the MAP-21 revisions now authorize assignment of multimodal projects under the Program. States participating in the Program are expected to follow the same standards for environmental review as Federal agencies. This includes NEPA's requirement for lead agencies to consider, in some circumstances, reasonable alternatives that would be outside their jurisdiction (40 CFR 1502.14(c)). Participating States would be expected to consider alternatives, whenever appropriate and reasonable, that meet the purpose and need for the action, but would result in a project for which it does not have all assigned environmental review responsibilities (e.g., multimodal project).

The Agencies propose to define “MOU” as “Memorandum of Understanding, a written agreement that complies with 23 U.S.C. 327(b)(4)(C) and (c), and this part.” Section 327(b)(4)(C) of title 23, U.S.C., establishes that one of the conditions for selection is that the head of the State agency having primary jurisdiction over highway matters enters into a written agreement with the Secretary. Section 327(c) describes the requirements for the agreements.

The Agencies propose to define the term “multimodal project” for this part as a “project that falls under the jurisdiction by law or special expertise of two or more DOT Operating Administrations.” This term is broader than the statutory term of “multimodal project” in 23 U.S.C. 139, which limits “multimodal projects” to projects funded in whole or in part by either FHWA or FTA. For example, for purposes of the Program, a project funded in whole by FRA and that would receive no funding from FHWA or FTA but that would fall under the jurisdiction by law or special expertise of these Agencies would be considered a multimodal project under the proposed definition.

The Agencies propose to define the “Program” as the “`Surface Transportation Project Delivery Program' established under 23 U.S.C. 327.”

The Agencies propose to define “public transportation project” as “a capital project or operating assistance for `public transportation,' as defined in chapter 53 of title 49, U.S.C.”

The Agencies propose to define “railroad project” as “any undertaking eligible for financial assistance from FRA to construct (including initial construction, reconstruction, replacement, rehabilitation, restoration, or other improvements) a railroad, as that term is defined in 49 U.S.C. 20102, including: environmental mitigation activities; an undertaking that involves a series of contracts or phases, such as a railroad corridor; and anything that may be constructed in connection with a railroad. The term railroad project does not include any undertaking in which FRA provides financial assistance to Amtrak.”

The Agencies propose to define “State” to mean “any agency under the direct jurisdiction of the Governor of any of the 50 States or Puerto Rico, or the mayor in the District of Columbia, which is responsible for implementing highway, railroad, public transportation, or multimodal projects eligible for assignment. State does not include agencies of local governments, transit authorities or commissions under their own board of directors, or State-owned corporations.”

Section 773.105—Eligibility

The Agencies propose an eligibility section to describe eligible applicants, eligible and ineligible responsibilities for assignment, and ineligible projects. Paragraph (a) proposes to establish the requirements for an Applicant to be eligible and to retain eligibility for Program participation. The proposed use of the phrase “retain eligibility” is intended to provide notice that any change in the State's circumstances or laws that creates a conflict with these requirements could result in termination of the State's participation in the Program. The conditions for Applicants' eligibility for the Secretary's responsibilities with respect to highway projects would be described first because highway assignment is a prerequisite for the assignment of the Secretary's responsibilities with respect to non-highway projects (23 U.S.C. 327(a)(2)(B)).

Under the proposed regulation, the State agency seeking and obtaining the assignment must be the State Department of Transportation (State DOT) for highway and railroad projects. The State must consent to accept the jurisdiction of the Federal courts for compliance, discharge, and enforcement of any responsibility of the Secretary that the State is seeking (23 U.S.C. 327(c)(3)(B)). State law would dictate how a State can achieve this waiver declaration of its sovereign immunity under the 11th Amendment of the U.S. Constitution. For example, in some States the authority to waive State sovereign immunity is reserved for the legislature. In other States, the authority may have been delegated to the State's Attorney General. In addition to these requirements, the State must have in place laws that authorize the State to take actions necessary to carry out the responsibilities it is assuming (23 U.S.C. 327(c)(3)(C)(i)); must have laws that are comparable to the Federal Freedom of Information Act (5 U.S.C. 552) (FOIA), including providing that decisions regarding public availability of documents under the State law be reviewable by a court of competent jurisdiction (23 U.S.C. 327(c)(3)(C)(ii)); and must have the financial resources necessary to carry out the responsibilities being assumed (23 U.S.C. 327(c)(3)(D)).

The proposed regulation would require States to adhere to the same conditions for assumption of the Secretary's responsibilities with respect to non-highway projects with two exceptions: (1) For public transportation projects, the State agency applying for assignment would not have to be a State DOT and (2) as noted above, a State would be required to obtain and maintain assignment of responsibilities with respect to one or more highway projects. This latter exception would mean that termination of assignment of responsibilities with respect to highway projects for a State would be cause for termination of assignment of responsibilities with respect to that State's non-highway projects under the proposed regulation.

Paragraph (b) proposes to establish eligible and ineligible responsibilities. A State seeking participation in the Program must request and obtain assignment for all NEPA responsibilities for the project(s) or classes of projects being sought. This proposed regulation would not permit assignment of only select aspects of the NEPA responsibilities (e.g., developing and approving only EAs and FONSIs). However, in accordance with 23 U.S.C. 327(a)(2)(B)(i), a State does not have to seek all environmental review responsibilities. As an example, a State may decide to seek all environmental review responsibilities with the exception of those associated with section 106 of the NHPA.

As established by 23 U.S.C. 327(a)(2)(B)(iv), the list of ineligible responsibilities would include conformity determinations under section 176(c) of the CAA and the Secretary's responsibilities under transportation planning legal requirements (23 U.S.C. 134 and 135; 49 U.S.C. 5303 and 5304). The list also would include government-to-government consultation with Tribal governments (see Executive Order 13175, Consultation and Coordination with Indian Tribal Governments). Proposed paragraph (b) would clarify that the Secretary's responsibilities that are not related to the environmental review process are not eligible for assignment and assumption under this Program. For example, in the highway context, approvals of changes to Interstate access, issuance of Buy America waivers, and approval of Interstate and National Highway System design exceptions are not considered to be environmental review responsibilities that can be assigned through this Program.

In addition, proposed paragraph (b)(6) would exclude the assignment of the Secretary's environmental review responsibilities for actions of DOT Operating Administrations other than FHWA, FRA, and FTA, providing notice to potential applicant States that the Secretary's responsibilities for other portions of multimodal projects are not assignable under the Program. For example, in a situation where a highway, railroad, or public transportation project will either receive funding or require the approval of another DOT Operating Administration not covered by the Program (e.g., Maritime Administration (MARAD) or Federal Aviation Administration (FAA)), the State may request and receive assignment of the FHWA, FRA, or FTA environmental review responsibilities, but would not be able to request or receive assignment of the other Operating Administration's environmental review responsibilities. The Agencies have determined that this approach is consistent with section 1313 of MAP-21. The Agencies have denominated the proposal as option 1. The Agencies specifically request public comment on the feasibility of and interest in this proposal.

The Agencies evaluated other approaches for implementing the statute's direction to provide for assignment of environmental review responsibilities with respect to multimodal projects. Under option 2 the rule would have allowed assignment of environmental review responsibilities for elements of a multimodal project not explicitly listed in the statute (e.g., airports, motor carrier safety, port, and pipeline/hazardous materials safety). Option 2 would have allowed the assignment of environmental review responsibilities even when the largest element of the project is an element that was not specifically listed in the law. For example, under this reading a project that is in its majority an airport project, but that has a minor public transportation element, would be assignable under the Program as a multimodal project. The Agencies considered various factors in pursuing option 1 rather than option 2. The broader interpretation in option 2 could create administrative difficulties in its implementation. For example, Operating Administrations other than FHWA, FRA, and FTA would need to become familiar with, participate, and budget for the auditing and monitoring process. Furthermore, it is more common for MARAD and FAA projects to involve third-party sponsoring entities other than a State (e.g., port and airport authorities) that are ineligible for assignment and who may want DOT to retain its responsibilities. In addition, neither the MAP-21 nor its legislative history provide clear direction that the provision should be implemented in its broadest sense. Therefore, the Agencies did not believe that option 2 was reasonable or consistent with this provision. See U.S. Telecom Ass'n v. F.C.C., 359 F. 3d 554, 566 (D.C. Cir. 2004) (holding that Federal agencies may not subdelegate to outside entities—private or sovereign—absent affirmative evidence of authority to do so).

Despite issues described in the previous paragraph, if the Agencies were to pursue option 2, the Agencies envision that the application process would proceed in the following manner: (1) A State would request the responsibilities for multimodal projects through the Office of the Secretary of Transportation (OST); (2) OST would send the request to all affected DOT Operating Administrations for their coordination, review, and approval; (3) if approved, the Operating Administrations would enter into agreements with the State and would share responsibility for the oversight (i.e., audit and monitoring requirements) with respect to the assigned environmental review responsibilities that would have otherwise been under their jurisdiction. Obtaining assignment for the Secretary's environmental review responsibilities with respect to highway projects would continue to be a precondition of obtaining assignment for the Secretary's environmental review responsibilities for non-highway projects. However, the Agencies do not consider option 2 reasonable or consistent with this provision, as outlined in the previous paragraph. The Agencies specifically request public comment on the feasibility of and interest in this option.

Under option 3, the Agencies considered a more limited approach than option 1, where the only multimodal projects considered for assignment are those made up of highway, railroad, and/or public transportation components and where the State successfully obtains assignment for all of the Secretary's environmental review responsibilities for the project. Under such scenario, a State may obtain assignment of a highway-railroad, railroad-public transportation, highway-public transportation, or highway-railroad-public transportation project if the State successfully obtains assignment from the Operating Administrations involved. Projects that have components of other DOT Operating Administrations would not be eligible for assignment. Restricting the assignment to situations where the State successfully obtains assignment for all the environmental review responsibilities involved (i.e., highway, railroad, and/or public transportation) would address complexities that could result from having a State acting for the Secretary and a DOT Operating Administration working together in a multimodal project. Examples of such complexities include the process for handling conflict resolution when a State has assumed the Secretary's responsibilities and a DOT Operating Administration is the other party involved in the conflict; joint legal representation issues when a participating State and another DOT Operating Administration are involved; and the potential impacts on privileges, such as protections for deliberative materials. The Agencies believe that this approach may be overly restrictive. The Agencies specifically request public comment on the feasibility of and interest in this option.

Proposed paragraph (c) would describe classes of projects that are ineligible for assignment. Ineligible classes of projects would include those that cross State boundaries and those that cross or are at international boundaries. Federal interest in these types of projects would warrant the active participation and involvement of the Agencies in the environmental review. Section 1503 of MAP-21 amends 23 U.S.C. 106 by creating a category of projects—high risk category—for which FHWA may not assign its responsibilities under 23 U.S.C. 106 to a State (see 23 U.S.C. 106(c)(4)). Paragraph (c) proposes to apply this assignment limitation to assignments under the Program.

Finally, the Agencies are proposing paragraph (d) to reiterate that they have discretion to reject assignment of eligible responsibilities or projects under the Program. Under the pilot program, FHWA did not allow assignment to the State of the responsibility for environmental review of projects identified for oversight under Executive Order 13274. The Agencies have determined that Executive Order 13274 projects may not be the only projects that warrant high-level involvement from the Agencies. The proposed paragraph (d) would entitle the Agencies to reject the assignment for a project under the Program based on unique circumstances surrounding the project or group of projects. For example, responsibilities for which the Operating Administration could exercise this discretion include the Secretary's environmental review responsibilities for projects that raise unique issues or precedent-setting analyses, or for projects that are within or cross Federal or Tribal lands.

Section 773.107—Pre-application Requirements

The Agencies propose this section to discuss pre-application requirements. Paragraph (a) proposes a pre-application coordination meeting between the appropriate Division, Regional, or Headquarters office of the Operating Administration and the State requesting the assignment. The purpose of this meeting would be to understand the State's interests, to identify the responsibilities that would be the subject of the application, and to establish timelines for the application process. This coordination would be important for clarifying any issues and questions regarding the application process and Program implementation. For example, this meeting would be useful for addressing issues related to the handling of multimodal projects. The meeting could establish the State's interest in assuming responsibility for specific multimodal projects or a class of multimodal projects, procedures that may be needed for seeking assignment of multimodal projects not identified at the time of application, and discussion of classes of multimodal projects that may be best handled on a case-by-case basis. It may be useful for the State and the relevant Operating Administration(s) to discuss possible scenarios for the identification of multimodal projects, such as situations where a project can be identified as a multimodal project early in project planning or at a later stage (e.g., where a project that started out as a highway, public transportation, or railroad and changes into a multimodal project during alternatives analysis). The meeting could also be useful for discussing how the State proposes to address environmental review for special classes of projects such as those that affect Federal or Tribal lands.

Paragraph (b) proposes to establish public notification responsibilities for States applying for Program participation. The proposed language is similar to the statutory language in 23 U.S.C. 327(b)(2)(C) (requiring States to provide evidence of the notice and solicitation and copies of the comments received) and section 327(b)(3) (requiring States to provide notification 30 days before the application submission and authorizing States to provide notice and solicit comments in accordance with the State laws for public notification). The Agencies have also included a requirement for the State to seek comments from resource agencies—those Federal, State, and Tribal agencies that have oversight or interest over protected resources in their State. This information would be useful for the Agencies' compliance with section 327(b)(5) (requiring the Secretary to solicit the views of Federal agencies that would have consultation responsibilities for assigned projects).

The Agencies propose a requirement, under paragraph (b)(1), for applicant States seeking the Secretary's responsibilities with respect to public transportation, to identify and solicit comments from recipients of assistance under chapter 53 of title 49, U.S.C. This would assist FTA in identifying recipients of assistance under chapter 53 of title 49, U.S.C., who would want FTA to maintain the responsibilities for a public transportation project pursuant to section 327(a)(2)(B)(iii). The FTA would consider this information in its final assignment decision.

The Agencies propose paragraphs (c) and (d) to encourage States to identify their respective processes for consenting to Federal court jurisdiction and to cure any deficiency with respect to any State information disclosure law or regulation that would make it inconsistent with FOIA. The process for consenting to Federal court jurisdiction may vary from State to State. These paragraphs propose to clarify that States must start this process as soon as possible and must complete it before submitting the application.

Section 773.109—Application Requirements

Section 773.109 proposes to include the application requirements. The proposal includes application provisions similar to those in current regulation 23 CFR 773.106. Notable differences from current § 773.106 are the inclusion of application procedures for railroad, public transportation, and multimodal project environmental review responsibilities; a paragraph encouraging electronic submissions; a paragraph discussing the joint application process; and a paragraph authorizing the Agencies to seek additional information.

The proposal defines the application requirements for the FHWA's responsibilities with respect to highway projects first because obtaining highway assignment is a precondition to obtaining responsibilities for non-highway projects. As specified in proposed § 773.105(a)(1)(i) the State entity seeking to participate in the Program must be the State DOT. Paragraph (a)(1) proposes to require the State to set forth in its application the highway projects or classes of highway projects for which it is seeking to obtain the Secretary's NEPA responsibilities. Proposed paragraph (a)(2) would require the State's application to identify which environmental review responsibilities, in addition to NEPA, it is seeking to obtain. As discussed in this preamble, a State must seek all NEPA responsibilities, but may seek either all, some, or none of the Secretary's responsibilities with respect to the other Federal environmental laws.

Proposed paragraph (a)(3) would require a State to discuss how it intends to carry out the responsibilities. Under the proposal, a State would need to provide a summary of that State's procedures currently in place to guide the process. A State would need to provide these procedures to FHWA either electronically or by submitting a hard copy. The proposal also would require a State to discuss any management changes it has made or will make to ensure good quality analyses. The proposal also would require a State to identify the process it will use for identifying projects that deserve higher scrutiny within that State. This requirement stems from the FHWA and FTA joint NEPA procedures at 23 CFR 771.125(c), which identifies situations where a Final EIS must be submitted from the Division or Region to Headquarters for approval. Under § 771.125(c), FHWA's Headquarters office would need to approve the Final EIS for projects where: (1) Additional coordination with other Federal, State, or local government agencies is needed; (2) the social, economic, or environmental impacts of the action may need to be explored more fully; (3) the impacts of the action are unusually great; (4) major issues remain unresolved; or (5) the action involves national policy issues. The proposed provision would require States to develop an analogous process to ensure that the State's Headquarters office approves the Final EIS for particular types of projects before they can proceed.

Proposed paragraph (a)(4) would require a State to describe its staff resources and any organizational changes it has made or will make to carry out the responsibilities sought. Proposed paragraph (a)(5) would require a State to summarize the financial resources available to carry out the responsibilities, the resource and staffing needs, and to provide a commitment that financial resources will be made available to meet these needs. These requirements stem from 23 U.S.C. 327(b)(4)(B) and (c)(3)(D).

Proposed paragraphs (a)(6) through (8) would require a State to provide evidence that it has waived its sovereign immunity with respect to the Secretary's responsibilities it is seeking to acquire, that it has laws comparable to FOIA, and that it has met the notice and solicitation of public comment requirements. The evidence sought for the sovereign immunity waiver and the FOIA requirement would take the form of a certification from the State's Attorney General or other State official legally empowered by State law to make such certification. This certification requirement stems from 23 U.S.C. 327(c)(3)(C).

Under proposed paragraph (a)(9), the Agencies would require a State to provide a point of contact for questions regarding the application and a point of contact for questions regarding the implementation of the Program in that State. These two points of contacts may be the same individual.

The Agencies propose paragraph (a)(10) to require a Governor, or the Mayor in the District of Columbia, to sign the application as acknowledgment of the commitment to provide resources for the implementation of the Program and the consent to exclusive Federal court jurisdiction for cases arising from the implementation of the Program in the State.

Proposed paragraph (b) would establish that the same information requirements apply for requests of the Secretary's environmental review responsibilities with respect to public transportation projects, but the discussion focuses on public transportation projects. In addition, the paragraph would require evidence that a State has either obtained assignment for the Secretary's environmental review responsibilities with respect to highway projects or has requested the assignment concurrently with the public transportation request. The Agencies propose a requirement for a State to provide evidence that it has notified recipients of assistance under chapter 53 of title 49, U.S.C., of the application (see 23 U.S.C. 327(a)(2)(B)(iii)).

Proposed paragraph (c) would establish that the same information requirements applicable to the request for the Secretary's environmental review responsibilities for highway projects would apply to the request for the Secretary's environmental review responsibilities for railroad projects. In addition, the paragraph would require evidence that a State has either obtained assignment for the Secretary's environmental review responsibilities with respect to highway projects or has requested the assignment concurrently with the railroad project request.

Proposed paragraph (d) would cover the application requirements for the Secretary's environmental review responsibilities with respect to multimodal projects. A State may seek assignment of the Secretary's environmental review responsibilities for the highway, railroad, and/or public transportation components of the multimodal project. As discussed above in this preamble, the Secretary's environmental review responsibilities with respect to actions of other Operating Administrations are not eligible for assignment. Under this proposal, a State would obtain the assignment for the component of the multimodal project that is eligible for assignment (i.e., highway, railroad, or public transportation) and would need to work with the Operating Administration(s) with jurisdiction by law or special expertise on the project to ensure a coordinated environmental review. This could involve the establishment of a special relationship with the DOT entity such as a joint lead agency relationship or a lead and cooperating agency relationship under NEPA.

Ideally, the identification of a multimodal project would occur early enough to allow for a joint application of the Secretary's responsibilities before the environmental review starts. However, in some situations the identification of a multimodal project may not occur until a later stage in the environmental review stage (e.g., identification of alternatives). States are encouraged to submit an application as early as possible once the project is determined to be a multimodal project. A State must submit an application to each Agency for which that State is seeking assignment of environmental review responsibilities.

Proposed paragraph (e) would authorize the electronic submittal of applications. Proposed paragraph (f) would authorize the joint submittal of applications. The Agencies believe that this provision would be particularly useful when a State is interested in seeking assignment for groups or classes of projects and multiple modal responsibilities (e.g., highway and public transportation NEPA responsibilities). Proposed paragraph (g) reminds States and the public that the Agencies are authorized to seek more information to cure any deficiencies in a submitted Program application.

Section 773.111—Application Review and Approval

Proposed § 773.111 would establish the review and approval process. Proposed paragraph (a) would require the Operating Administration to solicit public comments and consider these comments in its evaluation of the State's application. Information made available to the public for its review may include materials such as the State's original application and any amendments to the application, and any additional supporting material that is not included in the State's application. The materials for public review also may include a list of responsibilities sought by the State that the Operating Administration proposes to retain. This information would be useful for the public and commenting agencies to understand the limits of the proposed assignment. The paragraph would allow the use of joint notices for those situations where the State seeks the environmental review responsibilities of more than one of the Agencies for a project or a class of projects.

Proposed paragraph (b) would establish that upon approving the application, the Operating Administration will invite the State to enter into an agreement in accordance with 23 U.S.C. 327(b)(4)(C) and (c). Proposed paragraph (c) would establish that the assignment would not be effective until an MOU is executed. Proposed paragraph (d) would establish that the MOUs may be renewed for a term not longer than 5 years in accordance with 23 U.S.C. 327(c)(5). Proposed paragraph (e) indicates that an MOU would be made available for public inspection.

Section 773.113—Application Amendments

Proposed § 773.113 is similar to the current regulation at 23 CFR 773.108. Proposed paragraph (a) would establish that the State may amend its application after submission of the application but prior to the execution of a MOU. These amendments may request additions to or eliminate requests for responsibilities. An amendment request is subject to the same notification and solicitation of comments procedures as an application. This includes a requirement for the State to submit the comments received and to note changes made to the request based on the comments received. It also includes the applicable Operating Administration's solicitation of comments on any amendments prior to the decision on an application. This is meant to be consistent with the requirement in § 773.111(a) for an original application.

Proposed paragraph (b) would establish that a State may amend its original application after 1 year of the executed MOU. The amendment request is subject to the same notification and solicitation of comments procedures as the application. This includes a requirement for the State to submit the comments received and to note changes made to the request based on the comments received. It also includes the Operating Administration's solicitation of comments on the proposed changes prior to the decision on the application.

Section 773.115—Renewals

Proposed § 773.115 would describe the conditions of renewal for Program participation. The proposed section would include requirements for notification to DOT, solicitation of public comments, and information needed for the Agencies' consideration.

Proposed paragraph (a) would require the participating State to notify the appropriate Operating Administration of its intent to renew no later than 1 year before the expiration of the MOU. The intent of this provision is to have a venue similar to the pre-application meeting to identify any issues and to go through the process requirements.

The Agencies propose a process similar to the original application review and approval process for the renewal. The proposal would require the submission of renewal application no later than 6 months before a MOU's expiration date. An application would need to capture any relevant changed circumstances that have taken place since the original application. The proposal would require a public participation process for any renewal that would inform the State and the Operating Administration of any modifications that may be needed in a State's implementation of the assigned responsibilities. The proposal would require the Operating Administration(s) to solicit comments on the request and make documents under its consideration available for public review. This may include an original application, a renewal application, audit and monitoring reports, and a list of responsibilities the relevant Operating Administration proposes to retain. The relevant Operating Administration must consider comments it receives, in addition to the record before it, in making a determination to renew.

Paragraph (g) proposes to permit a continuance of a State's participation in the Program after the expiration of its MOU in exceptional situations. Specifically, such a continuance would be intended to address situations where administrative delays or emergencies would not allow the timely execution of a renewal MOU. This provision would be an extraordinary measure that would be used when the only remaining step for Program continuation is the execution of signature or completion of administrative protocols. The Operating Administration would have the discretion of exercising this extraordinary measure.

Section 773.117—Termination

The Agencies are proposing to include § 773.117 to address termination of the assignment of portions or all Federal environmental review responsibilities. The Agencies believe that it is difficult to predict all circumstances where it might be necessary to terminate the assignment for portions or all of the environmental review responsibilities. Therefore, the proposed regulation does not specify criteria for termination.

Appendix A To Part 773—Example List of the Secretary's Environmental Review Responsibilities That May Be Assigned Under 23 U.S.C. 327

The Agencies propose Appendix A as a list of example Federal environmental review responsibilities that may be assigned under the Program. A similar list exists in the current Appendix A of part 773. Additional responsibilities have been added related to FRA responsibilities to recognize the broadened scope of the Program.

The Agencies propose to create a new part 264 in 49 CFR to include a reference to 23 U.S.C. 327 and the Program application procedures in 23 CFR part 773. A cross reference would assist those potential FRA applicants, State and Federal agencies, and the public.

49 CFR part 622—Environmental Impact and Related Procedures

The Agencies proposed to revise the authorities in subpart A—Environmental Procedures, to include a reference to 23 U.S.C. 327 and the application procedures in 23 CFR part 773. A cross reference would assist those potential FTA applicants, State and Federal agencies, and the public.

Rulemaking Analyses and Notices

All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. In addition to late comments, the Secretary will also continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material. The Agencies may publish a final rule at any time after close of the comment period.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). The Agencies have determined preliminarily that this action would not be a significant regulatory action under section 3(f) of Executive Order 12866 and would not be significant within the meaning of DOT's regulatory policies and procedures (44 FR 11032).

These proposed changes are not anticipated to adversely affect, in a material way, any sector of the economy. This proposed rulemaking sets forth application requirements for the Program, which will result in only minimal costs to program applicants. In addition, these changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. §§ 601-612), the Agencies have evaluated the effects of this proposed rule on small entities and anticipate that this action would not have a significant economic impact on a substantial number of small entities.

The proposed rule addresses application requirements for States wishing to participate in the Program. As such, it affects only States, and States are not included in the definition of small entity set forth in 5 U.S.C. 601. Therefore, the Regulatory Flexibility Act does not apply, and the Agencies certify that this action would not have significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This proposed rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $148.1 million or more in any one year (2 U.S.C. 1532). Further, in compliance with the Unfunded Mandates Reform Act of 1995, the Agencies would evaluate any regulatory action that might be proposed in subsequent stages of the proceeding to assess the effects on State, local, and Tribal governments and the private sector. Additionally, the definition of “Federal Mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or Tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government.

Executive Order 13132 (Federalism Assessment)

Executive Order 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may have a substantial, direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This proposed action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and the Agencies have preliminarily determined that this proposed action would not warrant the preparation of a federalism assessment. The Agencies have also determined that this proposed action would not preempt any State law or State regulation or affect any States' ability to discharge traditional State governmental functions.

Under the Program, a State may voluntarily assume the responsibilities of the Secretary for implementation of NEPA for one or more highway projects, and one or more railroad, public transportation, or multimodal projects. Upon a State's voluntary assumption of NEPA responsibilities, a State also may assume all or part of the Secretary's responsibilities for environmental review, consultation or other action required under any Federal environmental law pertaining to the review or approval of highway, public transportation, railroad, or multimodal projects. It is expected that a State would choose to assume these Federal agency responsibilities in those cases where the State believes that such an action would enable the State to streamline project development and construction. The assumption of these Federal agency responsibilities would not preempt any State law or State regulation or affect any States' ability to discharge traditional State governmental functions. Any federalism implications arising from the States' assumption of Federal agency responsibilities are attributable to 23 U.S.C. 327. Any change in the relative role of the State is consistent with section 2(a) and 3(c) of Executive Order 13132 because the national government is granting to the States the maximum administrative discretion possible. We invite State and local governments with an interest in this proposed rulemaking to comment on the effect that adoption of specific proposals may have on State or local governments.

Executive Order 13175 (Tribal Consultation)

The Agencies have analyzed this action under Executive Order 13175 and believe that the proposed action would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Tribal governments; and would not preempt Tribal law. The proposed rulemaking addresses application requirements for the Program and would not impose any direct compliance requirements on Tribal governments. Therefore, a Tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

The Agencies have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agencies have determined that the proposed action is not a significant energy action under that order because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.

Executive Order 12372 (Intergovernmental Review)

The DOT's regulations implementing Executive Order 12372 (49 CFR part 17) apply to this proposed rulemaking. Accordingly, the Agencies solicit comments on this issue.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for collections of information they conduct, sponsor, or require through regulations. The PRA applies to Federal agencies' collections of information imposed on ten or more persons. “Persons” include a State, territorial, Tribal, or local government, or branch thereof, or their political subdivisions. In this regulation, the Agencies consider the State to be the applicant/person for all types of projects covered by this regulation. A State with multiple applications would count as one person for purposes of the Agencies' PRA analysis.

The Agencies have determined that the number of States interested in the Program is very small. During FHWA's implementation of the Pilot Program in the past 7 years, only one State, California, indicated any interest and applied to participate in the Program. The FHWA twice surveyed the remaining States for any additional interest in participation and received no expressed interest. The Agencies are aware of only one additional State that has initiated legislative action to facilitate its potential application for this Program.

Based on this information, the Agencies' anticipate fewer than 10 States requesting to participate in the Program. The Agencies will initiate the clearance process for OMB's approval to collect information if they receive applications from nine States. The Agencies will contact OMB to initiate that process at that time.

Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and DOT Order 5610.2(a) (the DOT Order), 91 FR 27534 (May 10, 2012) (available online at www.fhwa.dot.gov/enviornment/environmental_justice/ej_at_dot/order_56102a/index.cfm), require DOT agencies to achieve environmental justice (EJ) as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations and low-income populations in the United States. The DOT Order requires DOT agencies to address compliance with Executive Order 12898 and the DOT Order in all rulemaking activities. In addition, FHWA and FTA have issued additional documents relating to administration of Executive Order 12898 and the DOT Order. On June 14, 2012, FHWA issued an update to its EJ order, FHWA Order 6640.23A, FHWA Actions to Address Environmental Justice in Minority Populations and Low Income Populations (the FHWA Order) (available online at www.fhwa.dot.gov/legsregs/directives/orders/664023a.htm). FTA also issued an update to its EJ policy, FTA Policy Guidance for Federal Transit Recipients, (the FTA Circular) 77 FR 42077 (July 17, 2012) (available online at www.fta.dot.gov/legislation_law/12349_14740.html).

The Agencies have evaluated this proposed rule under the Executive Order, the DOT Order, the FHWA Order, and the FTA Circular. The Agencies have determined that the proposed application regulations, if finalized, would not cause disproportionately high and adverse human health and environmental effects on minority or low income populations. States assuming NEPA responsibilities and Executive Order 12898 responsibilities must comply with the Department's and the appropriate Operating Administrations' guidance and policies on environmental justice and title VI of the Civil Rights Act of 1964.

Executive Order 13045 (Protection of Children)

The Agencies have analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The Agencies certify that this proposed action would not concern an environmental risk to health or safety that might disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

The Agencies do not anticipate that this proposed action would affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

National Environmental Policy Act

Agencies are required to adopt implementing procedures for NEPA that establish specific criteria for, and identification of, three classes of actions: Those that normally require preparation of an EIS; those that normally require preparation of an EA; and those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). This proposed action qualifies for categorical exclusions under 23 CFR 771.117(c)(20) (promulgation of rules, regulations, and directives) and 771.117(c)(1) (activities that do not lead directly to construction) for FHWA, and 23 CFR 771.118(c)(4) (planning and administrative activities which do not involve or lead directly to construction) for FTA. In addition, FRA has determined that this proposed action is not a major FRA action requiring the preparation of an environmental impact statement or environmental assessment under FRA's Procedures for Considering Environmental Impacts (64 FR 28545, May 26, 1999 as amended by 78 FR 2713, Jan. 14, 2013). The Agencies have evaluated whether the proposed action would involve unusual circumstances or extraordinary circumstances and have determined that this proposed action would not involve such circumstances.

Under the Program, a selected State may voluntarily assume the responsibilities of the Secretary for implementation of NEPA for one or more highway projects, and one or more railroad, public transportation, or multimodal projects. Upon a State's voluntary assumption of NEPA responsibilities, that State also may choose to be assigned all or part of the Secretary's responsibilities for environmental review, consultation or other action required under any Federal environmental law pertaining to the review or approval of highway, public transportation, railroad, or multimodal projects. A State must follow the DOT's and the appropriate Agency's regulations, policies, and guidance with respect to NEPA and the assumed environmental law responsibilities. As a result, the Agencies find that this proposed rulemaking would not result in significant impacts on the human environment.

Regulation Identification Number

A RIN is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

For the reasons discussed in the preamble, the Agencies propose to amend 23 CFR chapter I and 49 CFR chapters II and VI as follows:

Title 231. Revise part 773 to read as follows:PART 773—SURFACE TRANSPORTATION PROJECT DELIVERY PROGRAM APPLICATION REQUIREMENTS AND TERMINATIONSec.773.101Purpose.773.103Definitions.773.105Eligibility.773.107Pre-application requirements.773.109Application requirements.773.111Application review and approval.773.113Application amendments.773.115Renewals.773.117TerminationAppendix A to Part 773—Example List of the Secretary's Environmental Review Responsibilities That May Be Assigned Under 23 U.S.C. 327.Authority:

23 U.S.C. 315 and 327; 49 CFR 1.81(a)(4)-(6); 49 CFR 1.85

§ 773.101 Purpose.

The purpose of this part is to establish the requirements for an application by a State to participate in the Surface Transportation Project Delivery Program (Program). The Program allows, under certain circumstances, the Secretary to assign, and a State to assume, the responsibilities under, the National Environmental Policy Act of 1969 (NEPA) and for environmental review, consultation or other action required under certain Federal environmental laws with respect to one or more highway, railroad, public transportation, or multimodal projects within the State.

§ 773.103 Definitions.

Unless otherwise specified in this part, the definitions in 23 U.S.C. 101(a) and 49 U.S.C., are applicable to this part. As used in this part:

Classes of projects means either a defined group of projects or all projects to which Federal environmental laws apply.

Federal environmental law means any Federal law or Executive Order (E.O.) under which the Secretary of the U.S. Department of Transportation (DOT) has responsibilities for environmental review, consultation, or other action with respect to the review or approval of a highway, railroad, public transportation, or multimodal project. A list of the Federal environmental laws for which a State may assume the responsibilities of the Secretary under this Program include, but are not limited to, the list of laws contained in Appendix A to this part.

Highway project means any undertaking to construct (including initial construction, reconstruction, replacement, rehabilitation, restoration, or other improvements) a highway, bridge, or tunnel, or any portion thereof, including environmental mitigation activities, which is authorized under title 23 U.S.C. A highway project may include an undertaking that involves a series of contracts or phases, such as a corridor, and also may include anything that may be constructed in connection with a highway, bridge, or tunnel. The term highway project does not include any project authorized under 23 U.S.C. 202, 203, or 204 unless the State will design and construct the project.

MOU means a Memorandum of Understanding, a written agreement that complies with 23 U.S.C. 327(b)(4)(C) and (c), and this part.

Multimodal project means a project that falls under the jurisdiction by law or special expertise of two or more DOT Operating Administrations.

Program means the “Surface Transportation Project Delivery Program” established under 23 U.S.C. 327.

Public transportation project means a capital project or operating assistance for “public transportation,” as defined in chapter 53 of title 49 U.S.C.

Railroad project means any undertaking eligible for financial assistance from FRA to construct (including initial construction, reconstruction, replacement, rehabilitation, restoration, or other improvements) a railroad, as that term is defined in 49 U.S.C. 20102, including: Environmental mitigation activities; an undertaking that involves a series of contracts or phases, such as a railroad corridor; and anything that may be constructed in connection with a railroad. The term railroad project does not include any undertaking in which FRA provides financial assistance to Amtrak.

State means any agency under the direct jurisdiction of the Governor of any of the 50 States or Puerto Rico, or the mayor in the District of Columbia, which is responsible for implementing highway, public transportation, or railroad projects eligible for assignment. State does not include agencies of local governments, transit authorities or commissions under their own board of directors, or State-owned corporations.

§ 773.105 Eligibility.

(a) Applicants. A State must comply with the following conditions to be eligible and to retain eligibility for the Program.

(1) For highway projects:

(i) The State must be a State Department of Transportation (State DOT) established and maintained in conformity with 23 U.S.C. 302 and 23 CFR 1.3;

(ii) The State expressly consents to accept the jurisdiction of the Federal courts for compliance, discharge, and enforcement of any responsibility of FHWA assumed by the State;

(iii) The State has laws in effect that authorize the State to take the actions necessary to carry out the responsibilities being assumed;

(iv) The State has laws in effect that are comparable to the Freedom of Information Act (FOIA) (5 U.S.C. 552), including laws providing that any decision regarding the public availability of a document under those State laws is reviewable by a court of competent jurisdiction; and

(v) The State has the financial resources necessary to carry out the responsibilities it is assuming.

(2) For railroad, public transportation, or multimodal projects:

(i) The State must comply with paragraphs (a)(1)(ii) through (v) of this section; and

(ii) The State must have assumed the responsibilities of the Secretary under this part with respect to one or more highway projects.

(3) For railroad projects, the State must also be the State DOT.

(b) Responsibilities. Responsibilities eligible for Program assignment and State assumption include all NEPA responsibilities and all or part of the reviews, consultations, and other actions required under other environmental laws, regulations, and E.O.s. Appendix A contains an example list of other environmental laws, regulations, and E.O.s that may be assigned to and assumed by the State. The following responsibilities are ineligible for Program assignment and State assumption:

(4) The Secretary's responsibilities for government-to-government consultation with Tribes; and

(5) The Secretary's responsibilities for approvals that are not considered to be part of the environmental review of a project, such as project approvals, Interstate access approvals, and safety approvals.

(6) The Secretary's responsibilities under NEPA and for reviews, consultations and other actions required under other Federal environmental laws for actions of Operating Administrations other than FHWA, FRA, and FTA.

(c) Projects. Environmental reviews ineligible for assignment and State assumption under the Program include reviews for the following types of projects:

(1) Projects that cross State boundaries;

(2) Projects that are at or cross international boundaries; and

(3) Projects classified as high risk under 23 U.S.C. 106(c)(4).

(d) Discretion retained. Nothing in this section limits an Operating Administration's discretion to withhold approval of assignment of eligible responsibilities or projects under this Program.

§ 773.107 Pre-application requirements.

(a) Coordination meeting. The State must request and participate in a pre-application coordination meeting with the appropriate Division, Regional, or Headquarters office of the applicable Operating Administration(s) before soliciting public comments on its application.

(b) Public comments. The State must give notice of its intention to participate in the Program and must solicit public comment by publishing the complete application in accordance with the appropriate State public notice laws not later than 30 days prior to submitting its application to the appropriate Operating Administration(s). If allowed under State law, publishing a notice of availability of the application rather than the application itself may satisfy the requirements of this provision so long as the complete application is made available on the internet and reasonably available to the public for inspection. Solicitation of public comments must include solicitation of the views of other State agencies, Tribal agencies, and Federal agencies that may have consultation or approval responsibilities associated with the project(s) within State boundaries.

(1) The State requesting the FTA's responsibilities with respect to public transportation projects must identify and solicit public comments from potential recipients of assistance under chapter 53 of title 49 U.S.C.

(2) The State must submit copies of all comments received with the publication of the respective application(s). The State must summarize the comments received and note any actions taken in response to the public comments.

(c) Sovereign immunity waiver. The State must identify and complete the process required by State law for consenting and accepting exclusive Federal court jurisdiction with respect to compliance, discharge, and enforcement of any of the responsibilities being sought.

(d) Comparable State laws. The State must determine that it has laws that are in effect that authorize the State to take actions necessary to carry out the responsibilities the State is seeking and laws that are comparable to FOIA. The State must ensure that it cures any deficiency before submitting its application.

§ 773.109 Application requirements.

(a) Highway project responsibilities. An eligible State DOT may submit an application to FHWA to participate in the Program for one or more highway projects or classes of highway projects. The application must include:

(1) The highway projects or classes of highway projects for which the State is requesting assumption of Federal environmental review responsibilities under NEPA. The State must specifically identify in its application each highway project for which a draft environmental impact statement has been issued and for which a final environmental impact statement is pending, prior to the submission of its application;

(2) Each Federal environmental law, review, consultation, or other environmental responsibility the State seeks to assume under this Program. The State must indicate whether it proposes to phase-in the assumption of these responsibilities, i.e. initially assuming only some responsibilities with a plan to assume additional responsibilities at specific future times;

(3) For each responsibility requested in paragraphs (a)(1) and (2) of this section, the State must describe how it intends to carry out these responsibilities. Such description must include:

(i) A summary of State procedures currently in place to guide the development of documents, analyses, and consultations required to fulfill the environmental review responsibilities requested. The State must submit a copy of the procedures with the application unless these are available electronically. The State may submit the procedures electronically, either through email or by providing a hyperlink;

(ii) Any changes that the State has or will make in the management of its environmental program to provide the additional staff and training necessary for quality control and assurance, appropriate levels of analysis, adequate expertise in areas where the State is requesting responsibilities, and expertise in management of the NEPA process and reviews under other Federal environmental laws;

(iii) A discussion of how the State will verify legal sufficiency for the environmental document it produces; and

(iv) A discussion of how the State will identify and address those projects that would normally require Headquarters prior concurrence of the final environmental impact statement under 23 CFR 771.125(c).

(4) A verification of the personnel necessary to carry out the authority that may be granted under the Program. The verification must contain the following information:

(i) A description of the staff positions, including management, that will be dedicated to fulfilling the additional functions needed to accept the assigned responsibilities;

(ii) A description of any changes to the State's organizational structure that would be necessary to provide for efficient administration of the responsibilities assumed; and

(iii) A discussion of personnel needs that may be met by the State's use of outside consultants, including legal counsel provided by the State Attorney General or private counsel;

(5) A summary of the anticipated financial resources available to meet the activities and staffing needs identified in paragraphs (a)(3) and (4) of this section, and a commitment to make adequate financial resources available to meet these needs;

(6) Certification and explanation by the State's Attorney General, or other State official legally empowered by State law that the State can and will assume the responsibilities of the Secretary for the Federal environmental laws and projects requested and that the State consents to exclusive Federal court jurisdiction with respect to the responsibilities being requested and to be assumed. Such consent must be broad enough to include future changes in relevant Federal policies and procedures to which FHWA would be subject or such consent would be amended to include such future changes;

(7) Certification by the State's Attorney General, or other State official legally empowered by State law, that the State has laws that are comparable to FOIA, including laws that allow for any decision regarding the public availability of a document under those laws to be reviewed by a court of competent jurisdiction;

(8) Evidence that the required notice and solicitation of public comment by the State relating to participation in the Program has taken place and the States response to the comments;

(9) A point of contact for questions regarding the application and a point of contact regarding the implementation of the Program (if different); and

(10) The State Governor's signature approving the application.

(b) Public transportation project responsibilities. An eligible State may submit an application to FTA to participate in the Program for one or more public transportation projects or classes of public transportation projects. The application must provide the information required by paragraphs (a)(1) through (10) of this section, but with respect to FTA's program and the public transportation project(s) at issue. In addition, the application must include:

(1) Evidence that FHWA has assigned, or has been requested to assign, to the State the responsibilities of FHWA with respect to one or more highway projects within the State under NEPA; and

(2) Evidence that any potential recipients of assistance under chapter 53 of title 49 U.S.C., for any public transportation project or classes of public transportation projects in the State being sought for Program assignment have received written notice of the application with adequate time to provide comments on the application.

(c) Railroad project responsibilities. An eligible State may submit an application to FRA to participate in the Program for one or more railroad projects or classes of railroad projects. The application must provide the information required by paragraphs (a)(1) through (10) of this section, but with respect to the railroad project(s) at issue. In addition, the application must include evidence that FHWA has assigned, or has been requested to assign, to the State the responsibilities of FHWA with respect to one or more highway projects within the State under NEPA.

(d) Multimodal project responsibilities. An eligible State may submit an application for assignment of the Secretary's Federal environmental review responsibilities for a multimodal project, group of projects, or classes of projects. A State may seek only the Secretary's Federal environmental review responsibilities with respect to the highway, railroad, or public transportation components of the multimodal project, group of projects, or classes of projects. A State should submit the application as early as possible once the project is identified as a multimodal project and must provide the information required by paragraphs (a)(1) through (10) of this section, but with respect to the highway, railroad, or public transportation components of the multimodal project(s) at issue. In addition, the application must include evidence that FHWA has assigned, or has been requested to assign, to the State the responsibilities of FHWA with respect to one or more highway projects within the State under NEPA. A State must submit the application to each of the applicable Operating Administrations from which the State is seeking assignment.

(e) Electronic submissions. All applications may be submitted electronically.

(f) Joint application. A State may submit joint applications for multiple modal responsibilities. A joint application must avoid redundancies and duplication of information to the maximum extent practicable. The application must distinguish the modal projects or classes of projects of interest a State is seeking for assignment. A joint application must provide all of the information required by each Operating Administration for which a State is seeking assignment. A State must submit joint applications to each applicable Operating Administration.

(g) Requests for additional information. The appropriate Operating Administration(s) may request that the State provide additional information to address any deficiencies in the application or clarifications that may be needed prior to determining that the application is complete.

§ 773.111 Application review and approval.

(a) The Operating Administration must solicit public comments on the pending request and must consider comments received before rendering a decision on the State's application. Materials made available for this public review may include the State's application, any additional supporting materials, and a list of responsibilities sought by the State that the Operating Administration proposes to retain. The notification may be a joint notification if two or more Operating Administrations are involved in the assignment for a project or a class of projects.

(b) If the Operating Administration approves the application of a State, then the Operating Administration will invite the State to enter into a MOU.

(c) The State's participation in the Program is effective upon the execution of the MOU. The Operating Administration's responsibilities under NEPA and any other environmental laws may not be assigned to or assumed by the State prior to execution of the MOU with the exception of renewal situations under § 773.115(g) of this part.

(d) The MOU must have a term of not more than 5 years that may be renewed pursuant to § 773.115 of this part.

(e) The MOU and approved application must be published on a DOT Web site and made reasonably available to the public for inspection and copying.

§ 773.113 Application amendments.

(a) After a State submits its application to the appropriate Operating Administration(s), but prior to the execution of the MOU(s), the State may amend its application at any time to request additional projects, classes of projects, or more environmental review responsibilities consistent with the requirements of this part.

(1) Prior to requesting any such amendment, the State must provide notice and solicit public comments with respect to the intended amendments in compliance with § 773.107(b) of this part.

(2) In submitting the amendment to the appropriate Operating Administration(s), the State must provide copies of all comments received and note the changes, if any, that were made in response to the comments.

(3) Consistent with § 773.111(a) of this part, the appropriate Operating Administration(s) must solicit public comments on the change prior to approving the application.

(b) Upon execution of the MOU(s), a State may amend its application to the appropriate Operating Administration(s) no earlier than 1 year after the MOU has been executed to request additional projects, classes of projects, or more environmental review responsibilities consistent with the requirements of this part.

(1) Prior to requesting any such amendment, the State must provide notice and solicit public comments with respect to the intended amendments in compliance with § 773.107(b) of this part.

(2) In submitting the amendment to the appropriate Operating Administration(s), the State must provide copies of all comments received and note the changes, if any, that were made in response to the comments.

(3) Consistent with § 773.111(a) of this part, the appropriate Operating Administration(s) must solicit public comments on the change prior to approving the application.

§ 773.115 Renewals.

(a) A State planning to renew a MOU and to maintain the assumption of the Operating Administration's responsibilities under NEPA and other environmental laws must notify the appropriate Operating Administration(s) of its intent to do so at least 12 months before the expiration of the MOU.

(b) A State must submit an application to renew the MOU no later than 180 days prior to the expiration of the MOU.

(c) An application to renew a MOU must:

(1) Describe any changes to the information submitted to meet § 773.109(a)(1) through (5) and (a)(9) of this part for the applicable Operating Administration(s);

(2) Provide up-to-date certifications required in § 773.109(a)(6) through (7) of this part for the applicable Operating Administration(s);

(3) Provide evidence of the public notification requirements in paragraph (d) of this section; and

(4) Provide the State Governor's, or the Mayor's in the District of Columbia, signature approving the application to renew the MOU.

(d) The State must give notice of its intent to renew its participation in the Program and must solicit public comment in compliance with § 773.107(b) of this part.

(e) The appropriate Operating Administration(s) may request that the State provide additional information to address any deficiencies in the renewal application or to provide clarifications.

(f) The appropriate Operating Administration(s) must solicit public comments on the renewal request and must consider comments received before approving the State's renewal application. Materials made available for this public review may include the State's original application, the renewal application, any additional supporting materials, a list of responsibilities sought by the State that the Operating Administration proposes to retain, and auditing and monitoring reports developed as part of the Program. The notification may be a joint notification if two or more Operating Administrations are involved in the assignment for a project or a class of projects.

(g) At the discretion of the Operating Administration, a State may retain temporarily its assigned and assumed responsibilities under a MOU after the expiration of the MOU, where the relevant Operating Administration(s) determines that:

(1) The State made a timely submission of a complete renewal application in accordance with the provisions of this section;

(2) The Operating Administration(s) determines that all reasonable efforts have been made to achieve a timely execution of the renewal; and

(3) The Operating Administration(s) determines that it is in the best interest of the public to grant the continuance.

§ 773.117 Termination.

Pursuant to 23 U.S.C. 327 and any applicable conditions of the Secretary's assignment of responsibilities to the State, either the Secretary or the State may terminate the participation of the State in the Program.

Appendix A to Part 773—Example List of the Secretary's Environmental Review Responsibilities That May Be Assigned Under 23 U.S.C. 327Federal Procedures

The NEPA, 42 U.S.C. 4321 et seq.

Regulations for Implementing the Procedural Provisions of NEPA at 40 CFR 1500-1508.

Title 492. Add 49 CFR part 264 to read as follows:PART 264—SURFACE TRANSPORTATION PROJECT DELIVERY PROGRAM APPLICATION REQUIREMENTS AND TERMINATIONSec.264.101Procedures for complying with the surface transportation project delivery program application requirements and termination.Authority:

23 U.S.C. 327; 49 CFR 1.81.

§ 264.101 Procedures for complying with the surface transportation project delivery program application requirements and termination.

The procedures for complying with the surface transportation project delivery program application requirements and termination are set forth in part 773 of title 23 of the Code of Federal Regulations.

PART 622—ENVIRONMENTAL IMPACT AND RELATED PROCEDURES3. The authority citation for part 622 is revised to read as follows:Authority:

The procedures for complying with the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.), and related statutes, regulations, and orders are set forth in part 771 of title 23 of the Code of Federal Regulations. The procedures for complying with 49 U.S.C. 303, commonly known as “Section 4(f),” are set forth in part 774 of title 23 of the Code of Federal Regulations. The procedures for complying with the surface transportation project delivery program application requirements and termination are set forth in part 773 of title 23 of the Code of Federal Regulations.

This proposed rule is being issued pursuant to authority delegated under 49 CFR 1.81.

The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques and other forms of information technology.

Comments regarding this information collection received by September 30, 2013 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20503. Commentors are encouraged to submit their comments to OMB via email to: OIRA_Submission@omb.eop.gov or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8681.

An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

Forest Service

Title: Disposal of Mineral Materials.

OMB Control Number: 0596-0081.

Summary of Collection: The Forest Service (FS) is responsible for overseeing the management of National Forest System land. The Multiple-Use Mining Act of 1955 (30 U.S.C. 601, 603, 611-615) gives the FS specific authority to manage the disposal of mineral materials mined from National Forest land. FS uses form FS-2800-9, “Contract for the Sale of Mineral Materials” to collect detailed information on the planned mining and disposal operations as well as a contract for the sale of mineral materials.

Need and Use of the Information: Interested parties are asked to provide information that includes the purchaser's name and address, the location and dimensions of the area to be mined, the kind and quantity of material to be mined, the sales price of the mined material, the payment schedule, amount of the bond, and the period of the contract. Collected information from the public will ensure that environmental impacts of mineral material disposal are minimized. A review of the operating plan provides the authorized officer the opportunity to determine if the proposed operation is appropriate and consistent with all applicable land management laws and regulations. The information also provides the means of documenting planned operations and the terms and conditions that the FS deems necessary to protect surface resources. If FS did not collect this information, operations could cause undue damage to surface resources.

The Monongahela National Forest is proposing to charge $10.00 per night for single unit sites and $20.00 per night for double unit sites at Island Campground on the Greenbrier Ranger District. The Forest recently finished reconstruction of Island Campground which included relocating and upgrading the campground to provide a safe, fully accessible, 12-unit campground. Prior to reconstruction, this was a small, primitive campground with very few amenities. Fees for overnight use will be used for the continued operation and maintenance of Island Campground.

DATES:

Send any comments about this fee proposal by November 1, 2013 so comments can be compiled, analyzed and shared with the Eastern Region Recreation Resource Advisory Committee.

This new fee will be reviewed by the Eastern Region Recreation Resource Advisory Committee prior to a final decision and implementation by the Regional Forester, Eastern Region, USDA Forest Service.

The Monongahela National Forest made upgrades to Island Campground based on public input and support. A market comparison indicates that the $10.00 per night for single unit sites and $20.00 per night for double unit sites is both reasonable and acceptable for this sort of recreation experience.

Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Wisconsin Advisory Committee (Committee) will hold a fact finding meeting on Thursday, September 12, 2013, for the purpose of gathering information and hearing recommendations regarding hate crimes in Wisconsin. The Committee will receive testimony from advocates, federal and state officials, law enforcement officials, professors, and community leaders. The Committee met with the Sikh Temple of Milwaukee in September 2012 and determined thereafter to research hate crime and hate groups throughout the state, to analyze current hate crime statutes and their effectiveness as hate crime deterrents, and to investigate other models of preventing hate incidents in the state. The testimony presented at the meeting will address these research goals.

Members of the public are invited and welcomed to make statements into the record at the meeting starting at 6:15 p.m. Member of the public are also entitled to submit written comments; the comments must be received in the regional office by October 12, 2013. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 55 W Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8311, or emailed to the Commission at callen@usccr.gov. Persons who desire additional information may contact the Midwestern Regional Office at (312) 353-8311.

Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Midwestern Regional Office at least ten (10) working days before the scheduled date of the meeting.

Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Wisconsin Advisory Committee link. Persons interested in the work of this Committee are directed to the Commission's Web site, http://www.usccr.gov, or may contact the Midwestern Regional Office at the above email or street address.

The U.S. Department of Commerce issued an amended Export Trade Certificate of Review to Northwest Fruit Exporters on August 13, 2013. The Certificate has been amended twenty-four times.

FOR FURTHER INFORMATION CONTACT:

Joseph E. Flynn, Director, Office of Competition and Economic Analysis, International Trade Administration, by telephone at (202) 482-5131 (this is not a toll-free number) or email at etca@trade.gov.

SUPPLEMENTARY INFORMATION:

Title III of the Export Trading Company Act of 1982 (15 U.S.C. Sections 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. The regulations implementing Title III are found at 15 CFR Part 325 (2013). The U.S. Department of Commerce, International Trade Administration, Office of Competition and Economic Analysis (“OCEA”) is issuing this notice pursuant to 15 CFR 325.6(b), which requires the Secretary of Commerce to publish a summary of the issuance in the Federal Register. Under Section 305(a) of the Export Trading Company Act (15 U.S.C. 4012(b)(1)) and 15 CFR 325.11(a), any person aggrieved by the Secretary's determination may, within 30 days of the date of this notice, bring an action in any appropriate district court of the United States to set aside the determination on the ground that the determination is erroneous.

Notice of an opportunity for travel and tourism industry leaders to apply for membership on the Board of Directors of the Corporation for Travel Promotion.

SUMMARY:

The Department of Commerce is currently seeking applications from travel and tourism leaders from specific industries for membership on the Board of Directors (Board) of the Corporation for Travel Promotion (dba Brand USA). The purpose of the Board is to guide the Corporation for Travel Promotion on matters relating to the promotion of the United States and communication of travel facilitation issues, among other tasks. On July 24, 2013, we published in the Federal Register a “Notice of an opportunity for travel and tourism industry leaders to apply for membership on the Board of Directors of the Corporation for Travel Promotion” (78 FR 44531), announcing membership opportunities on the Board of Directors of the Corporation for Travel Promotion. The application period closed on August 9, 2013. We are now reopening the application period to solicit additional applications. This notice supplements the notice of July 24, 2013. Interested parties who have already applied in response to that Federal Register notice do not need to re-apply.

Background: The Travel Promotion Act of 2009 (TPA) was signed into law by President Obama on March 4, 2010. The TPA established the Corporation for Travel Promotion (the Corporation), as a non-profit corporation charged with the development and execution of a plan to (A) Provide useful information to those interested in traveling to the United States; (B) identify and address perceptions regarding U.S. entry policies; (C) maximize economic and diplomatic benefits of travel to the United States through the use of various promotional tools; (D) ensure that international travel benefits all States and the District of Columbia; and (E) identify opportunities to promote tourism to rural and urban areas equally, including areas not traditionally visited by international travelers.

The Corporation is governed by a board of directors, consisting of 11 members with knowledge of international travel promotion and marketing, broadly representing various regions of the United States. The TPA directs the Secretary of Commerce (after consultation with the Secretary of Homeland Security and the Secretary of State) to appoint the board of directors for the Corporation.

On July 24, 2013, we published in the Federal Register a “Notice of an opportunity for travel and tourism industry leaders to apply for membership on the Board of Directors of the Corporation for Travel Promotion” (78 FR 44531), announcing membership opportunities on the Board of Directors of the Corporation for Travel Promotion. The application period closed on August 9, 2013. We are now reopening the application period to solicit additional applications. This notice supplements the notice of July 24, 2013. Interested parties who have already applied in response to that Federal Register notice do not need to re-apply.

At this time, the Department will be selecting four individuals with the appropriate expertise and experience from specific sectors of the travel and tourism industry to serve on the Board as follows:

(A) One shall have appropriate expertise and experience in the attractions or recreations sector;

(B) One shall have appropriate expertise and experience in the passenger air sector;

(C) One shall have appropriate expertise and experience in immigration law and policy, including visa requirements and United States entry procedures; and

(D) One shall have appropriate expertise in the inter-city passenger railroad business.

To be eligible for Board membership, one must have international travel and tourism marketing experience and must also be a U.S. citizen. In addition, individuals cannot be federally registered lobbyists or registered as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.

Those selected for the Board must be able to meet the time and effort commitments of the Board. Priority may be given to individuals with experience as a Chief Executive Officer or President (or comparable level of responsibility) of an organization or entity in the travel and tourism sector in the United States.

Board members serve at the discretion of the Secretary of Commerce (who may remove any member of the Board for good cause). The terms of office of each member of the Board appointed by the Secretary shall be 3 years. Board members can serve a maximum of two consecutive full three-year terms. Board members are not considered Federal government employees by virtue of their service as a member of the Board and will receive no compensation from the Federal government for their participation in Board activities. Members participating in Board meetings and events may be paid actual travel expenses and per diem when away from their usual places of residence.

To be considered for membership, please provide the following:

1. Name, title, and personal résumé of the individual requesting consideration, including address and phone number; and

2. A brief statement of why the person should be considered for membership on the Board. This statement should also address the individual's relevant international travel and tourism marketing experience and indicate clearly the sector or sectors enumerated above in which the individual has the requisite expertise and experience. Individuals who have the requisite expertise and experience in more than one sector can be appointed for only one of those sectors. Appointments of members to the Board will be made by the Secretary of Commerce.

National Institute of Standards and Technology, Department of Commerce.

ACTION:

Notice.

SUMMARY:

This notice lists the membership of the National Institute of Standards and Technology Performance Review Board (NIST PRB) and supersedes the list published on August 13, 2012.

DATES:

The changes to the NIST PRB membership list announced in this notice are effective on August 30, 2013.

FOR FURTHER INFORMATION CONTACT:

Didi Hanlein at the National Institute of Standards and Technology, (301) 975-3000 or by email at desiree.hanlein@nist.gov.

SUPPLEMENTARY INFORMATION:

The National Institute of Standards and Technology Performance Review Board (NIST PRB or Board) reviews performance appraisals, agreements, and recommended actions pertaining to employees in the Senior Executive Service and ST-3104 employees. The Board makes recommendations to the appropriate appointing authority concerning such matters so as to ensure the fair and equitable treatment of these individuals.

This notice lists the membership of the NIST PRB and supersedes the list published in the Federal Register on August 13, 2012 (77 FR 48129).

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; public meeting.

SUMMARY:

The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Advisory Panel on September 17, 2013 to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

DATES:

This meeting will be held on Tuesday, September 17, 2013 at 9 a.m.

ADDRESSES:

Meeting address: The meeting will be held at the Best Western Wynwood Hotel, 580 US Highway 1, Interstate Traffic Circle, Portsmouth, NH 03801; telephone: (603) 436-7600; fax: (603) 436-7600.

The Advisory Panel will review scallop survey information and preliminary recommendations from the Scallop Plan Development Team (PDT) for FY 2014 and FY 2015 (default) fishery specifications (Framework 25). The Advisors will also provide input on other measures under consideration in Framework 25: (1) Accountability measures for the Southern New England/Mid-Atlantic windowpane flounder sub-ACL (annual catch limit); and (2) measures to address unused 2014 Closed Area I access area trips. The Advisors will review a draft of the Limited Access General Category Individual Fleet Quota (LAGC IFQ) Performance Report being prepared by the Scallop PDT. The IFQ Report is not final and will not be presented to the Council at this time but Advisors will have the opportunity to provide initial feedback. Finally, the Advisory Panel will discuss possible priorities for scallop related actions for 2014 and make recommendations to the Scallop Committee for consideration. Other business may be discussed.

Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

Special Accommodations

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; public meeting.

SUMMARY:

The New England Fishery Management Council (Council) is scheduling a public meeting of its Scientific and Statistical Committee (SSC) on September 16, 2013 to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

The NEFMC's Scientific and Statistical Committee will meet to specify overfishing levels (OFLs) and develop Acceptable Biological Catch (ABC) recommendations for scallops for fishing years 2014 and 2015 (default) and for the Northeast Skate Complex for fishing years 2014 through 2016. The Committee will consider information provided to it by the Council's Scallop Plan Development Team (PDT) and by the Skate PDT.

Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

Special Accommodations

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

The Groundfish Advisory Panel will meet, primarily to develop recommendations to the Groundfish Oversight Committee on issues that will be discussed during the September 17, 2013 meeting of the Committee. Related to Framework 51, they will consider Groundfish Plan Development Team (PDT) analyses and develop recommendations on draft measures. Related to Amendment 18, the panel will consider Groundfish PDT analyses and develop recommendations on draft measures. The panel will develop recommendations for groundfish priorities for 2014. They will address other business as necessary.

The Groundfish Oversight Committee will meet to discuss issues related to the Northeast Multispecies Fishery Management Plan. Related to Framework 51, the Committee will review Groundfish PDT analyses; review recommendations of the Groundfish Advisory Panel; review recommendations from the NEFMC Whiting Advisory Panel/MAFMC Squid Advisory Panel on small-mesh accountability measures for Georges Bank yellowtail flounder and develop recommendations on draft measures. Related to Amendment 18, they will review Groundfish PDT analyses; review recommendations of the Groundfish Advisory Panel and develop recommendations on draft measures. Also on the agenda will be to develop recommendations for groundfish priorities for 2014. They will address other business as necessary. There will be a closed session to review/recommend Advisory Panel applications for the next three year term (2014-16 term).

Although non-emergency issues not contained in this agenda may come before these groups for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

Special Accommodations

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies (see ADDRESSES) at least 5 days prior to the meeting date.

Agenda items to be discussed at the SSC meeting include: review multi-year ABC specifications for spiny dogfish, bluefish, summer flounder, scup and black sea bass; make ABC recommendations for up to three years (2014-16) for summer flounder, scup and black sea bass; review SUN Subcommittee criteria for establishing and evaluating multi-year ABC recommendations; discuss research priorities for 2014; discuss potential topics for the fifth National SSC Workshop; review proposed ABC specification protocol for forage fish; and, at the request of the Council, provide peer review of recent paper on changes in fish distribution in response to ocean warming.

Although non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during this meeting. Actions will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

Special Accommodations

The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Saunders at the Mid-Atlantic Council Office, (302) 526-5251, at least 5 days prior to the meeting date.

Development of Ecosystem-based management (EMB) vision statement; Operationalizing EBM in Council projects, including the Aleutian Islands Fishery Ecosystem Plan, the Arctic Fishery Management Plan (FMP); Bering Sea coral conservation, and the Bering Sea research area and gear modification areas.

Concluding Recommendations to Council

The Agenda is subject to change, and the latest version is posted at http://www.alaskafisheries.noaa.gov/npfmc/.

Although non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during these meetings. Actions will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

Special Accommodations

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen at (907) 271-2809 at least 7 working days prior to the meeting date.

Estuarine Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce.

ACTION:

Notice of approval of the Grand Bay, Mississippi and Delaware National Estuarine Research Reserve Management Plan Revisions.

SUMMARY:

Notice is hereby given that the Estuarine Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce approves the Grand Bay, Mississippi and the Delaware National Estuarine Research Reserve Management Plan Revisions. The revised management plans outline the administrative structure; the research, education, training, and stewardship goals of the reserve; and the plans for future land acquisition and facility development to support reserve operations.

The Grand Bay Reserve takes an integrated approach to management, linking research, education, training and stewardship functions to address high priority issues including climate change, threats to reserve resources and ecological functions, watershed development, and changes in water quality. Since the last management plan, the reserve has built out its core programs and monitoring infrastructure; constructed a L.E.E.D. certified Coastal Resources Center that includes laboratories, offices, classrooms, interpretative areas, and dormitories; and created interpretive trails.

With the approval of this management plan, the Grand Bay Reserve will decrease their total acreage from 18,400 acres to 18,049. The change is attributable to accuracy adjustments based on improved geographic information for the site. The revised management plan will serve as the guiding document for the 18,049 acre Grand Bay Reserve for the next five years.

The Delaware management plan focuses on improving the scientific understanding of estuarine and coastal ecosystems; improving public awareness and environmental literacy to enable environmentally sustainable decision-making; and protecting, managing and restoring the reserve to serve as a model site for sustainable community stewardship. Notable changes in the revised plan include a boundary expansion, a new coastal training program, implementation of the Blackbird Creek Reserve Master Ecological Restoration Plan, the opening of the Blackbird Creek Stewardship Center and facility improvements to the St. Jones Coastal Training Center.

With the approval of this management plan, the Delaware Reserve will increase their total acreage from 4,930 acres to 6,206. The change is attributable to acquisition of two parcels, totaling 64.3 acres, and increased mapping accuracy. These parcels have high ecological value and provide increased opportunities for research, education, and restoration. The revised management plan will serve as the guiding document for the 6,206 acre Delaware Reserve for the next five years.

The Grand Bay, Mississippi Reserve Management Plan revision is available at (http://grandbaynerr.org/reserve-management-plan) and the Delaware Reserve Management Plan revision is available at (http://de.gov/dnerr).

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; receipt of application for permit amendment.

SUMMARY:

Notice is hereby given that the Alaska Department of Fish and Game (ADF&G), Division of Wildlife Conservation, Juneau, AK, (Principal Investigator: Michael Rehberg), has applied for an amendment to Scientific Research Permit No. 14325-02 for taking Steller sea lions (Eumetopias jubatus) in Alaska.

DATES:

Written, telefaxed, or email comments must be received on or before September 30, 2013.

ADDRESSES:

The application and related documents are available for review by selecting “Records Open for Public Comment” from the Features box on the Applications and Permits for Protected Species home page, https://apps.nmfs.noaa.gov, and then selecting File No. 14325 from the list of available applications.

These documents are also available upon written request or by appointment in the following offices:

Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301)713-0376, or by email to NMFS.Pr1Comments@noaa.gov. Please include the File No. in the subject line of the email comment.

Those individuals requesting a public hearing should submit a written request to the Chief, Permits, Conservation and Education Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.

FOR FURTHER INFORMATION CONTACT:

Tammy Adams or Amy Sloan, (301)427-8401.

SUPPLEMENTARY INFORMATION:

The subject amendment to Permit No. 14325-02 is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.), the regulations governing the taking and importing of marine mammals (50 CFR part 216), the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR 222-226), and the Fur Seal Act of 1966, as amended (16 U.S.C. 1151 et seq.).

Permit No. 14325, issued on August 17, 2009 (74 FR 44822), authorizes taking of marine mammals during continuation of a long-term research program investigating various hypotheses for the decline or lack of recovery of Steller sea lions in Alaska. The permit includes takes for: Incidental disturbance during aerial surveys; disturbance of animals on rookeries and haulouts during brand resighting surveys, and incidental to scat collection; capture for instrument attachment, branding, capture method development, physiological research, and sample collection; permanent marking of pups for long-term demographic and distribution studies; capture of older animals for physiological assessment; and attachment of scientific instruments to investigate foraging ecology, diving behavior and habitat use. The permit also authorizes unintentional mortality of Steller sea lions, and incidental harassment of harbor seals (Phoca vitulinarichardsi), northern fur seals (Callorhinus ursinus), and California sea lions (Zalophus californianus). The permit was amended (to version no. 14325-01) on November 16, 2011, to change the identity of the Principal Investigator from Dr. Lorrie Rea to Michael Rehberg.

The permit was amended on July 12, 2012 (77 FR 38587), to include: manual restraint of pups in the eastern Distinct Population Segment (eDPS) and western DPS (wDPS); capture of adult Steller sea lions using remotely delivered immobilization agents; adding jugular blood draw/catheter location for sampling and Evans Blue injection; adding the intraperitoneal cavity to allowable deuterium injection sites; modifying time of year and number of takes for the Alsek/Akwe aerial surveys; and adding aerial surveys at Cape Newenham haulout and in the northern Bering Sea.

The permit holder requests an amendment to the permit to include: additional aerial surveys in the eDPS and wDPS; use of unmanned aircraft system to collect brand, entanglement, and population data; additional takes for non-target species (harbor seals, northern fur seals, and California sea lions) to accommodate the requested aerial and unmanned aircraft surveys.

In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an initial determination has been made that the activities proposed are consistent with the Preferred Alternative in the Final Programmatic Environmental Impact Statement for Steller Sea Lion and Northern Fur Seal Research (NMFS 2007), and that issuance of the permit would not have a significant adverse impact on the human environment.

Concurrent with the publication of this notice in the Federal Register, NMFS is forwarding copies of this application to the Marine Mammal Commission and its Committee of Scientific Advisors.

Committee for Purchase from People Who are Blind or Severely Disabled.

ACTION:

Additions to and Deletions from the Procurement List.

SUMMARY:

This action adds products and services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes services from the Procurement List previously provided by such agencies.

DATES:

Effective: September 30, 2013.

ADDRESSES:

Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 10800, Arlington, Virginia, 22202-4149.

On 7/8/2013 (78 FR 40727-40728) and 7/12/2013 (78 FR 41915-41916), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.

After consideration of the material presented to it concerning capability of qualified nonprofit agencies to furnish the products and services and impact of the additions on the current or most recent contractors, the Committee has determined that the products and services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

Regulatory Flexibility Act Certification

I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.

2. The action will result in authorizing small entities to furnish the products and services to the Government.

3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and services proposed for addition to the Procurement List.

End of Certification

Accordingly, the following products and services are added to the Procurement List:

On 7/19/2013 (78 FR 43180), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.

After consideration of the relevant matter presented, the Committee has determined that the services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

Regulatory Flexibility Act Certification

I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.

2. The action may result in authorizing small entities to provide the services to the Government.

3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the services deleted from the Procurement List.

End of Certification

Accordingly, the following services are deleted from the Procurement List:

This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.

Additions

If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the products listed below from the nonprofit agency employing persons who are blind or have other severe disabilities.

The following products are proposed for addition to Procurement List for production by the nonprofit agency listed:

The President appointed me as Director of the Bureau of Consumer Financial Protection on January 4, 2012, pursuant to his authority under the Recess Appointments Clause, U.S. Const. art. II, § 2, cl. 3. The President subsequently appointed me as Director on July 17, 2013, following confirmation by the Senate, pursuant to the Appointments Clause, U.S. Const. art. II, § 2, cl. 2. I believe that the actions I took during the period I was serving as a recess appointee were legally authorized and entirely proper. To avoid any possible uncertainty, however, I hereby affirm and ratify any and all actions I took during that period.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Consumer Product Safety Commission (CPSC or Commission) requests comments on a proposed request for extension of approval of a collection of information for the safety standard for infant bath seats. The Office of Management and Budget (OMB) previously approved the collection of information under control number 3041-0145. OMB's approval will expire on October 30, 2013. The Commission will consider all comments received in response to this notice before requesting an extension of approval of this collection of information from OMB.

DATES:

The Office of the Secretary must receive comments not later than October 29, 2013.

ADDRESSES:

You may submit comments, identified by Docket No. CPSC-2009-0064, by any of the following methods:

Electronic Submissions: Submit electronic comments to the Federal eRulemaking Portal at: http://www.regulations.gov. Follow the instructions for submitting comments. The Commission does not accept comments submitted by electronic mail (email), except through www.regulations.gov. The Commission encourages you to submit electronic comments by using the Federal eRulemaking Portal, as described above.

Instructions: All submissions received must include the agency name and docket number for this notice. All comments received may be posted without change, including any personal identifiers, contact information, or other personal information provided, to: http://www.regulations.gov. Do not submit confidential business information, trade secret information, or other sensitive or protected information that you do not want to be available to the public. If furnished at all, such information should be submitted in writing.

Docket: For access to the docket to read background documents or comments received, go to: http://www.regulations.gov, and insert the docket number, CPSC-2009-0064, into the “Search” box, and follow the prompts.

Section 104(b) of the Consumer Product Safety Improvement Act of 2008 (CPSIA), Public Law 110-314, 122 Stat. 3016 (August 14, 2008), requires the Consumer Product Safety Commission (Commission or CPSC) to promulgate consumer product safety standards for durable infant or toddler products. These standards are to be “substantially the same as” applicable voluntary standards or more stringent than the voluntary standard if the Commission concludes that more stringent requirements would further reduce the risk of injury associated with the product. On June 4, 2010, the Commission issued a safety standard for infant bath seats that incorporated by reference the voluntary standard for infant bath seats issued by ASTM International, ASTM F1967-08a, with some modifications to further reduce the risk of injury associated with infant bath seats. 75 FR 31691. On July 31, 2012, the Commission adopted the revised ASTM standard for infant bath seats, ASTM F1967-11a. 77 FR 45242. The requirements for infant bath seats are set forth under 16 CFR part 1215.

Sections 8.6 and 9 of ASTM F1967-11a contain requirements for marking, labeling, and instructional literature, which may be considered to be collections of information. Section 8.6 of ASTM F1967-11a requires:

• The name of the manufacturer, distributor, or seller and either the place of business (city, state, and mailing address, including zip code), or telephone number, or both; and

• a code mark or other means that identifies the date (month and year, as a minimum) of manufacture.

Section 9 of ASTM F1967-11a requires infant bath seats to be provided with instructions regarding assembly, maintenance, cleaning, storage, and use, as well as warnings.

B. Burden Hours

There are seven known firms supplying infant bath seats to the U.S. market. All seven firms are assumed to use labels on both their products and their packaging; however, modifications to existing labels may be required to comply with the ASTM standard. The estimated time required to make these modifications is about one hour per model. On the average, each of the seven firms supplies approximately two different models of infant bath seats; therefore, the estimated burden hours associated with modified labels is 1 hour × 7 firms × 2 models per firm = 14 annual hours.

Section 9 of ASTM F1967-11a requires instructions to be supplied with the product. This is a practice that is usual and customary with infant bath seats. These are products that generally require some installation and maintenance instructions, and any products sold without such information would not be able to compete successfully with products that provide this information. Any burden associated with supplying instructions with infant bath seats would be “usual and customary” and not within the definition of “burden” under OMB's regulations. 5 CFR 1320.3(b)(2).

We estimate that hourly compensation for the time required to create and update labels is $27.44, based on the assumption that sales or office employees will be modifying the labels as required (U.S. Bureau of Labor Statistics, “Employer Costs for Employee Compensation,” March 2013, Table 9, total compensation for all sales and office workers in goods-producing private industries: http://www.bls.gov/ncs/). Therefore, the estimated annual cost associated with the requirements is $384 ($27.44 per hour × 14 hours = $384).

The estimated annual cost of the information collection requirements to the federal government is approximately $3,527, which includes 60 CPSC staff hours to examine and evaluate the information, as needed for monitoring and enforcement. This is based on a GS-12 level, salaried employee. The average hourly wage rate for a mid-level salaried GS-12 employee in the Washington, DC, metropolitan area (effective as of January 2011) is $40.80 (GS-12, step 5). This represents 69.5 percent of total compensation (U.S. Bureau of Labor Statistics, “Employer Costs for Employee Compensation,” March 2013, Table 1, percentage of wages and salaries for all civilian management, professional, and related employees, http://www.bls.gov/ncs/). Adding an additional 30.5 percent for benefits brings average hourly compensation for a mid-range salaried GS-12 employee to $58.78. Assuming that approximately 60 hours of staff time will be required annually, the total annual cost of CPSC staff time to examine and evaluate the information is estimated at $3,527.

C. Request for Comments

The Commission solicits written comments from all interested persons about the proposed collection of information. The Commission specifically solicits information relevant to the following topics:

—whether the collection of information described above is necessary for the proper performance of the Commission's functions, including whether the information would have practical utility;—whether the estimated burden of the proposed collection of information is accurate;—whether the quality, utility, and clarity of the information to be collected could be enhanced; and—whether the burden imposed by the collection of information could be minimized by use of automated, electronic or other technological collection techniques, or other forms of information technology.Dated: August 27, 2013.Todd A. Stevenson,Secretary, Consumer Product Safety Commission.[FR Doc. 2013-21214 Filed 8-29-13; 8:45 am]BILLING CODE 6355-01-PDEPARTMENT OF DEFENSEOffice of the Secretary[Docket ID DoD-2013-OS-0187]Submission for OMB Review; Comment RequestACTION:

Notice.

SUMMARY:

The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

DATES:

Consideration will be given to all comments received by September 30, 2013.

Needs and Uses: The information collected supports the execution of the voluntary DIB CS/IA program to enhance and supplement DIB participant's capabilities to safeguard DoD information that resides on, or transits, DIB unclassified information systems. This program requires DoD to collect, share and manage point of contact information for program administration and management purposes.

Affected Public: Business or other for-Profit; Not-for-Profit.

Frequency: On occasion.

Respondent's Obligation: Voluntary.

OMB Desk Officer: Ms. Jasmeet Seehra.

Written comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.

You may also submit comments, identified by docket number and title, by the following method:

Instructions: All submissions received must include the agency name, docket number and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

DOD Clearance Officer: Ms. Patricia Toppings.

Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD Information Management Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.

Needs and Uses: The information collected supports the execution of the voluntary DIB CS/IA program to enhance and supplement DIB participant's capabilities to safeguard DoD information that resides on, or transits, DIB unclassified information systems. The requested information supports the collaborative cyber threat information sharing and incident reporting partnership between DoD and the DIB.

Affected Public: Business or other for-Profit; Not-for-Profit.

Frequency: On occasion.

Respondent's Obligation: Voluntary.

OMB Desk Officer: Ms. Jasmeet Seehra.

Written comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.

You may also submit comments, identified by docket number and title, by the following method:

Instructions: All submissions received must include the agency name, docket number and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

DOD Clearance Officer: Ms. Patricia Toppings.

Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD Information Management Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.

Office of Special Education and Rehabilitative Services (OSERS). Department of Education (ED).

ACTION:

Notice.

SUMMARY:

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501 et seq.), ED is proposing an extension without change of an existing information collection.

DATES:

Interested persons are invited to submit comments on or before September 30, 2013.

ADDRESSES:

Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting Docket ID number ED-2013-ICCD-0080 or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 2E115, Washington, DC 20202-4537.

The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

Title of Collection: Assurances for the Protection and Advocacy for Assistive Technology (PAAT) Program.

OMB Control Number: 1820-0658.

Type of Review: Extension without change of an existing collection of information.

Respondents/Affected Public: Private Sector.

Total Estimated Number of Annual Responses: 57.

Total Estimated Number of Annual Burden Hours: 9.

Abstract: This information collection instrument will be used by grantees to request funds to carry out the Protection and Advocacy for Assistive Technology (PAAT) Assurances program. PAAT is mandated by the Assistive Technology Act of 1998, as amended in 2004 (AT Act), to provide protection and advocacy services to individuals with disabilities for the purposes of assisting in the acquisition, utilization or maintenance of assistive technology or assistive technology services.

The Office of Fossil Energy (FE) of the Department of Energy (DOE) gives notice of receipt of an application (Application), filed on August 7, 2013, by ConocoPhillips Company (ConocoPhillips), requesting blanket authorization to export liquefied natural gas (LNG) that previously had been imported into the United States from foreign sources in an amount up to the equivalent of 500 Billion cubic feet (Bcf) of natural gas on a short-term or spot market basis over a two year period commencing on November 30, 2013.1 ConocoPhillips further requests that such authorization extend to LNG supplies imported from foreign sources to which ConocoPhillips holds title, as well as to LNG supplies imported from foreign sources that ConocoPhillips may export on behalf of other entities who themselves hold title. The LNG would be exported from the LNG terminal facilities owned by Freeport LNG Development, L.P. (Freeport LNG) on Quintana Island, Texas, to any country with the capacity to import LNG via ocean-going carrier and with which trade is not prohibited by U.S. law or policy. The Application was filed under section 3 of the Natural Gas Act (NGA). Protests, motions to intervene, notices of intervention, and written comments are invited.

Protests, motions to intervene or notices of intervention, as applicable, requests for additional procedures, and written comments are to be filed using procedures detailed in Public Comment Procedures below no later than 4:30 p.m., eastern time, September 30, 2013.

ConocoPhillips is a Delaware corporation with its principal place of business in Houston, Texas. ConocoPhillips is an independent producer and seller of natural gas that imports LNG into the United States and exports foreign-sourced LNG from the United States. On November 22, 2011, DOE/FE issued Order No. 3038, which granted ConocoPhillips authorization to export LNG that previously had been imported from foreign sources in an amount up to the equivalent of 500 Bcf of natural gas on a cumulative basis over a two-year period commencing on November 30, 2011.

Current Application

The current Application is filed in anticipation of the pending expiration of Order No. 3038 on November 29, 2013, and requests the same type of authorization previously granted in that Order. ConocoPhillips therefore requests this blanket authorization to export previously imported foreign-sourced LNG on a short-term or spot market basis. ConocoPhillips requests such authorization on its own behalf or as agent for others who hold title to the LNG at the time of export, up to a cumulative total equivalent to 500 Bcf of natural gas from the Freeport LNG Terminal for a twenty-five month period, beginning on November 30, 2013. ConocoPhillips is seeking the proposed authorization to export previously imported LNG to any country with the capacity to import LNG via ocean-going carrier and with which trade is not prohibited by Federal law or policy. ConocoPhillips states that it does not seek authorization to export domestically-produced natural gas or LNG.

Public Interest Considerations

In support of its Application, ConocoPhillips states that pursuant to section 3 of the NGA, FE must authorize exports to a foreign country unless there is a finding that such exports “will not be consistent with the public interest.” 2 ConocoPhillips states that section 3 creates a statutory presumption in favor of approval of a properly framed export application.3 ConocoPhillips states further, in evaluating an export application, FE applies the principles described in DOE Delegation Order No. 0204-111 which states that domestic need for natural gas shall be the primary focus of DOE when evaluating an export application.4 Finally, as detailed below, ConocoPhillips states that this blanket export authorization request satisfies the public interest standard of section 3 of the NGA.

ConocoPhillips asserts that there is no domestic need for the LNG to be exported by ConocoPhillips pursuant to the blanket authorization requested. In support, ConocoPhillips states that in recent years, DOE/FE has issued a number of blanket authorizations to export previously-imported LNG, including the one issued to ConocoPhillips in Order No. 3038, finding that such LNG is not needed to meet domestic demand for natural gas.5 ConocoPhillips cites numerous recent authorizations issued by DOE/FE that were all approved. ConocoPhillips states that DOE/FE concluded in a recent Freeport LNG Development L.P. authorization that, “the evidence of record indicates that United States' consumers continue to have access to substantial quantities of natural gas sufficient to meet domestic demand from multiple other sources at competitive prices without drawing on the LNG which Freeport LNG Development L.P. seeks to export.” 6 Conoco Phillips states that this record evidence also supports the conclusion that the foreign-sourced LNG that ConocoPhillips may export from the Freeport LNG terminal facilities pursuant to the blanket authorization requested herein is not needed to meet domestic demand.

ConocoPhillips states that the monthly reports that it has filed with DOE/FE pursuant to Order No. 3038 confirm that it has used its currently effective blanket authorization to export previously-imported LNG from the United States. ConocoPhillips states that the Order No. 3038 blanket export authorization has also facilitated the importation of LNG cargos into the United States by enabling it to import LNG cargos without fear that such cargos will become captive to the U.S. market if, in ConocoPhillips' view, market conditions ultimately do not support delivering regassified LNG into the U.S. market. ConocoPhillips states that is has also sold LNG to Freeport LNG to replace boil off, thereby contributing to the operational stability of the Freeport LNG terminal facilities.

Environmental Impact

ConocoPhillips states that no modifications to Freeport LNG's Quintana Island terminal are required to enable the proposed exports of LNG. ConocoPhillips also states the environmental impacts of permitting the exportation of LNG from Freeport LNG's Quintana Island terminal facilities were already reviewed by DOE/FE in Order No. 3317 7 and that DOE/FE previously found that the export of LNG by ConocoPhillips from the Freeport LNG terminal facilities will have no additional environmental impact.8

7ibid at p. 10 n. 14.

8See DOE/FE Order No. 3038 (November 22, 2011).

DOE/FE Evaluation

The Application will be reviewed pursuant to section 3(a) of the NGA, 15 U.S.C. 717b(a), as amended, and the authority contained in DOE Delegation Order No. 00-002.00L (April 29, 2011) and DOE Redelegation Order No. 00-002.04E (April 29, 2011). In reviewing this Application, DOE will consider domestic need for the natural gas, as well as any other issues determined to be appropriate, including whether the arrangement is consistent with DOE's policy of promoting competition in the marketplace by allowing commercial parties to freely negotiate their own trade arrangements. Persons that may oppose this Application should comment in their responses on these issues.

NEPA requires DOE to give appropriate consideration to the environmental effects of its proposed decisions. No final decision will be issued in this proceeding until DOE has met its NEPA responsibilities.

Public Comment Procedures

In response to this Notice, any person may file a protest, comments, or a motion to intervene or notice of intervention, as applicable. Any person wishing to become a party to the proceeding must file a motion to intervene or notice of intervention, as applicable. The filing of comments or a protest with respect to the Application will not serve to make the commenter or protestant a party to the proceeding, although protests and comments received from persons who are not parties will be considered in determining the appropriate action to be taken on the Application. All protests, comments, motions to intervene or notices of intervention must meet the requirements specified by the regulations in 10 CFR Part 590. The information contained in any filing will not be held confidential and will be posted to DOE's public Web site except to the extent confidential treatment is requested and granted.

Filings may be submitted using one of the following methods: (1) emailing the filing to fergas@hq.doe.gov, with FE Docket No. 13-97-LNG in the title line; (2) mailing an original and three paper copies of the filing to the Office of Oil and Gas Global Security and Supply at the address listed in ADDRESSES; or (3) hand delivering an original and three paper copies of the filing to the Office of Oil and Gas Global Security and Supply at the address listed in ADDRESSES. All filings must include a reference to FE Docket No. 13-97-LNG.

A decisional record on the Application will be developed through responses to this notice by parties, including the parties' written comments and replies thereto. Additional procedures will be used as necessary to achieve a complete understanding of the facts and issues. A party seeking intervention may request that additional procedures be provided, such as additional written comments, an oral presentation, a conference, or trial-type hearing. Any request to file additional written comments should explain why they are necessary. Any request for an oral presentation should identify the substantial question of fact, law, or policy at issue, show that it is material and relevant to a decision in the proceeding, and demonstrate why an oral presentation is needed. Any request for a conference should demonstrate why the conference would materially advance the proceeding. Any request for a trial-type hearing must show that there are factual issues genuinely in dispute that are relevant and material to a decision and that a trial-type hearing is necessary for a full and true disclosure of the facts.

If an additional procedure is scheduled, notice will be provided to all parties. If no party requests additional procedures, a final Opinion and Order may be issued based on the official record, including the Application and responses filed by parties pursuant to this notice, in accordance with 10 CFR 590.316.

The Application is available for inspection and copying in the Office of Oil and Gas Global Security and Supply docket room, Room 3E-042, 1000 Independence Avenue SW, Washington, DC 20585. The docket room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. The Application and any filed protests, motions to intervene or notice of interventions, and comments will also be available electronically by going to the following DOE/FE Web address: http://www.fe.doe.gov/programs/gasregulation/index.html.

The Office of Fossil Energy (FE) of the Department of Energy gives notice that during July 2013, it issued orders granting authority to import and export natural gas, to import and export liquefied natural gas and to vacate prior authority. These orders are summarized in the attached appendix and may be found on the FE Web site at http://www.fossil.energy.gov/programs/gasregulation/authorizations/Orders-2013.html. They are also available for inspection and copying in the Office of Fossil Energy, Office of Oil and Gas Global Security and Supply, Docket Room 3E-033, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-9478. The Docket Room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.

This notice announces a live Board meeting of the State Energy Advisory Board (STEAB). The Federal Advisory Committee Act (Pub. L. 92-463; 86 Stat. 770) requires that public notice of these meetings be announced in the Federal Register.

Purpose of the Board: To make recommendations to the Assistant Secretary for the Office of Energy Efficiency and Renewable Energy regarding goals and objectives, programmatic and administrative policies, and to otherwise carry out the Board's responsibilities as designated in the State Energy Efficiency Programs Improvement Act of 1990 (Pub. L. 101-440).

Tentative Agenda: Receive in person updates and reviews of accomplishments of STEAB's Subcommittee and Taskforces, meet with key members of DOE's Office of Energy Efficiency and Renewable Energy (EERE) to discuss current initiatives and programs, participate in round-table discussions with EERE Program Directors, explore energy innovative financing options, discuss strategic planning opportunities, and update to the Board on routine business matters and other topics of interest.

Public Participation: The meeting is open to the public. Written statements may be filed with the Board either before or after the meeting. Members of the public who wish to make oral statements pertaining to agenda items should contact Gil Sperling at the address or telephone number listed above. Requests to make oral comments must be received five days prior to the meeting; reasonable provision will be made to include requested topic(s) on the agenda. The Chair of the Board is empowered to conduct the meeting in a fashion that will facilitate the orderly conduct of business.

Minutes: The minutes of the meeting will be available for public review and copying within 90 days on the STEAB Web site, www.steab.org.

This notice announces a meeting of the Unconventional Resources Technology Advisory Committee. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the Federal Register.

Purpose of the Committee: The purpose of the Unconventional Resources Technology Advisory Committee is to provide advice on development and implementation of programs related to onshore unconventional natural gas and other petroleum resources to the Secretary of Energy; and provide comments and recommendations and priorities for the Department of Energy Annual Plan per requirements of the Energy Policy Act of 2005, Title IX, Subtitle J, Section 999D.

Public Participation: The meeting is open to the public. The Designated Federal Officer and the Chairman of the Committee will lead the meeting for the orderly conduct of business. Individuals who would like to attend must RSVP by email to: UnconventionalResources@hq.doe.gov no later than 5:00 p.m. on Monday, September 16, 2013. Please provide your name, organization, citizenship and contact information. Space is limited. Everyone attending the meeting will be required to present government-issued identification. If you would like to file a written statement with the Committee, you may do so either before or after the meeting. If you would like to make oral statements regarding any of the items on the agenda, you should contact Elena Melchert at the telephone number listed above. You must make your request for an oral statement at least three business days prior to the meeting, and reasonable provisions will be made to include all who wish to speak. Public comment will follow the three-minute rule.

Minutes: The minutes of this meeting will be available for public review and copying within 60 days at http://energy.gov/fe/services/advisory-committees/unconventional-resources-technology-advisory-committee.

This notice announces a meeting of the Ultra-Deepwater Advisory Committee. The Federal Advisory Committee Act (Public Law 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the Federal Register.

Purpose of the Committee: The purpose of the Ultra-Deepwater Advisory Committee is to provide advice on development and implementation of programs related to ultra-deepwater architecture and technology to the Secretary of Energy and provide comments and recommendations and priorities for the Department of Energy Annual Plan per requirements of the Energy Policy Act of 2005, Title IX, Subtitle J, Section 999D.

Public Participation: The meeting is open to the public. The Designated Federal Officer and the Chairman of the Committee will lead the meeting for the orderly conduct of business. Individuals who would like to attend must RSVP by email to: UltraDeepwater@hq.doe.gov no later than 5:00 p.m. on Thursday, September 12, 2013. Please provide your name, organization, citizenship and contact information. Space is limited. Everyone attending the meeting will be required to present government issued identification. If you would like to file a written statement with the Committee, you may do so either before or after the meeting. If you would like to make oral statements regarding any of the items on the agenda, you should contact Elena Melchert at the telephone number listed above. You must make your request for an oral statement at least three business days prior to the meeting, and reasonable provisions will be made to include all who wish to speak. Public comment will follow the three-minute rule.

Minutes: The minutes of this meeting will be available for public review and copying within 60 days at http://energy.gov/fe/services/advisory-committees/ultra-deepwater-advisory-committee.

On August 14, 2013, Columbia Gas Transmission, LLC (Columbia) filed with the Federal Energy Regulatory Commission (Commission) an application under section 7 of the Natural Gas Act and Sections 157.205 and 157.210 of the Commission's regulations and Columbia's authorization in Docket No. CP83-76-000, 22 FERC ¶62,029 (1983), to convert some existing compressor units from base load to standby operational mode at three compressor stations. As explained in the application, the affected stations are located in Braxton County, Hardy Elk County, and Pendleton County, West Virginia.

Pursuant to Section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review (NSER). If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a NSER will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.

Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to Section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for authorization pursuant to Section 7 of the NGA.

Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such motions or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant, on or before the comment date. It is not necessary to serve motions to intervene or protests on persons other than the Applicant.

The Commission encourages electronic submission of comments, protests and interventions in lieu of paper using the “eFiling” link at http://www.fere.gov. Persons unable to file electronically should submit an original and five copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

This filing is accessible on-line at http://www.ferc.gov using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email FERCOnlineSupport@ferc.gov, or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

In compliance with the requirements of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(a)(1)(D), the Federal Energy Regulatory Commission (Commission or FERC) is submitting the information collection FERC-582 (Electric Fees, Annual Charges, Waivers, and Exemptions) to the Office of Management and Budget (OMB) for review of the information collection requirements. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission issued a Notice in the Federal Register (78 FR 47310, 8/5/2013) requesting public comments. FERC received no comments on the FERC-582 and is making this notation in its submittal to OMB.

Note:

Commission staff is issuing this notice to highlight a change in the estimated total annual burden from what was shown in two recent notices. In each prior notice,1 FERC estimated the total annual burden at 114 hours. FERC has revised the estimation of the total annual burden to 300 hours, which better reflects past burden estimates for this collection. More specifically, portions of the total annual burden were increased from 1 hour per response to 3 hours per response (Annual Charges) and 2 hours per response (Declaratory Order), consistent with estimates for this collection since the last time it was approved by OMB. The total number of respondents remained static. Further detail regarding the total annual burden is provided below in the “Estimate of Annual Burden” section of this notice.

1 78 FR 30912, 5/23/2013; and 78 FR 47310, 8/5/2013.

DATES:

Comments on the collection of information are due by September 20, 2013.

ADDRESSES:

Comments filed with OMB, identified by the OMB Control No. 1902-0132, should be sent via email to the Office of Information and Regulatory Affairs: oira_submission@omb.gov. Attention: Federal Energy Regulatory Commission Desk Officer. The Desk Officer may also be reached via telephone at 202-395-4718.

A copy of the comments should also be sent to the Federal Energy Regulatory Commission, identified by the Docket No. IC13-15-000, by either of the following methods:

Instructions: All submissions must be formatted and filed in accordance with submission guidelines at: http://www.ferc.gov/help/submission-guide.asp. For user assistance contact FERC Online Support by email at ferconlinesupport@ferc.gov, or by phone at: (866) 208-3676 (toll-free), or (202) 502-8659 for TTY.

Docket: Users interested in receiving automatic notification of activity in this docket or in viewing/downloading comments and issuances in this docket may do so at http://www.ferc.gov/docs-filing/docs-filing.asp.

FOR FURTHER INFORMATION CONTACT:

Ellen Brown may be reached by email at DataClearance@FERC.gov, by telephone at (202) 502-8663, and by fax at (202) 273-0873.

SUPPLEMENTARY INFORMATION:

Title: Electric Fees, Annual Charges, Waivers, and Exemptions.

OMB Control No.: 1902-0132.

Type of Request: Three-year extension of the FERC-582 information collection requirements with no changes to the reporting requirements.

Abstract: The information required by FERC-582 is contained within 18 Code of Federal Regulations (CFR) part 381 2 and part 382.3

The Commission uses the FERC-582 to implement the statutory provisions of the Independent Offices Appropriation Act of 1952 (IOAA) 4 which authorizes the Commission to establish fees for its services. In addition, the Omnibus Budget Reconciliation Act of 1986 (OBRA) 5 authorizes the Commission to assess and collect fees and annual charges in any fiscal year in amounts equal to all the costs incurred by the Commission in that fiscal year.

4 31 U.S.C. 9701.

5 42 U.S.C. 7178.

To comply with the FERC-582, respondents submit to the Commission the sum of the megawatt-hours (MWh) of all unbundled transmission (including MWh delivered in wheeling transactions and MWh delivered in exchange transactions) and the megawatt-hours of all bundled wholesale power sales (to the extent the bundled wholesale power sales were not separately reported as unbundled transmission). The data collected within the FERC-582 is drawn directly from the FERC Form 1 transmission data. The Commission sums the costs of its electric regulatory program and subtracts all electric regulatory program filing fee collections to determine the total collectible electric regulatory program costs. Then, the Commission uses the data submitted under FERC-582 to determine the total megawatt-hours of transmission of electric energy in interstate commerce.

Respondents (public utilities, power marketers) subject to these annual charges must submit FERC-582 data to the Commission by April 30 of each year.6 The Commission issues bills for annual charges to respondents. Then, respondents must pay the charges within 45 days of the Commission's issuance of the bill.

6 18 CFR 382.201.

Respondents may file requests for waivers and exemptions of fees and charges 7 based on need. The Commission's staff uses the filer's financial information to evaluate the request for a waiver or exemption of the obligation to pay a fee or an annual charge.

7 18 CFR 381 and 382.

Respondents may also file petitions for declaratory orders and requests for OGC interpretations.

Type of Respondents: Public utilities and power marketers.

Estimate of Annual Burden:8 The Commission revises its estimate of the total Public Reporting Burden for this information collection as: 9

8 Burden is defined as the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. For further explanation of what is included in the information collection burden, reference 5 Code of Federal Regulations 1320.3.

9 See “Summary” section above for more information about the revision to the burden estimates as compared to recent notices.

Parts not shown in the table are not shown because we don't expect to see any of these filings in the next three years.

11 This is a loaded cost (wages plus benefits) for a full-time employee.

Comments: Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.

Take notice that on August 14, 2013, East Tennessee Natural Gas, LLC (East Tennessee), 5400 Westheimer Court, Houston, Texas 77056-5310, filed an application pursuant to Section 7(b) and 7(c) of the Natural Gas Act (NGA) and Part 157 of the Commission's regulations, for authorization to construct, own, and operate the Kingsport Expansion Project (Project) located in Sullivan County, Tennessee and Washington County, Virginia. This filing may also be viewed on the Commission's Web site at http://www.ferc.gov using the “eLibrary” link. Enter the docket number, excluding the last three digits, in the docket number field to access the document. For assistance, call (866) 208-3676 or TTY, (202) 502-8659.

The Project is designed to provide natural gas service to Eastman Chemical Company's (Eastman) existing manufacturing facility in Sullivan County, Tennessee. East Tennessee and Eastman have executed a precedent agreement for 61,000 Dth/day of firm transportation service for a primary term of 25 years from the service commencement date. East Tennessee proposes to construct approximately 6.5 miles of new 16-inch diameter natural gas pipeline mainline extension and related facilities in Sullivan County, Tennessee. East Tennessee proposes to abandon in place, removal, and relay of 8-inch diameter pipeline with 24-inch diameter pipeline and construct approximately 3.3 miles, 16-inch diameter loop of the existing Nora Line in Washington County, Virginia. Also, East Tennessee will construct approximately 5.7 miles of pipeline in Smyth County, Virginia. East Tennessee estimates that the proposed project will cost approximately $113.5 million and proposes an initial incremental recourse rate for firm transportation service on the Kingsport Project under Rate Schedule FT-A. East Tennessee proposes an in-service date for the Project being January 1, 2015.

On January 23, 2013, the Commission staff granted East Tennessee's request to use the pre-filing process and assigned Docket No. PF13-6-000 to staff activities involving the Project. Now, as of the filing of this application on August 14, 2013, the NEPA Pre-Filing Process for this project has ended. From this time forward, this proceeding will be conducted in Docket No. CP13-534-000, as noted in the caption of this Notice.

Pursuant to Section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.

There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 5 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.

However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.

Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.

Motions to intervene, protests and comments may be filed electronically via the internet in lieu of paper; see, 18 CFR 385.2001(a) (1) (iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings.

On August 13, 2013, Gulf South Pipeline Company, LP (Gulf South) and Petal Gas Storage, L.L.C. (Petal) filed jointly with the Federal Energy Regulatory Commission (Commission) an abbreviated application under section 7(b) and 7(c) of the Natural Gas Act and Commission regulations seeking: (i) Authority for Petal to abandon certain storage capacity by lease to Gulf South, and (ii) authority for Gulf South to acquire by lease certain storage capacity from by Petal (“Leased Capacities”), as more fully described in the application.

Gulf South proposes to establish an optional Alternative No-Notice Service (NNS-A) that offers customers a menu of service choices intended to meet the requirements of local distribution companies and the electric generation market. Gulf South will utilize the Leased Capacities to support the storage component of its proposed NNS-A, which requires the unique operational capabilities of Petal's salt-dome storage facilities.

There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit seven copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.

However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.

The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and seven copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. This filing is accessible on-line at http://www.ferc.gov. using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email FERCOnlineSupport@ferc.gov, or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

Take notice that on August 12, 2013, National Fuel Gas Supply Corporation (National Fuel), 6363 Main Street, Williamsville, New York 14221, filed in Docket No. CP13-530-000, a prior notice request pursuant to sections 157.205, 157.208, 157.210 and 157.216 of the Commission's regulations under the Natural Gas Act (NGA), and National Fuel's blanket certificate authorized in Docket No. CP83-4-000. National Fuel seeks authorization to construct approximately 2.05 miles of 24-inch diameter pipeline, parallel to its existing Line N, and construct a new 3,550 horsepower compressor station, and appurtenant facilities, in Washington and Mercer Counties, Pennsylvania. The proposed facilities would provide an additional 105,000 Dth/day of natural gas service in response to a shipper request. National Fuel proposes to abandon in place the existing 2.05 miles of 20-inch, 1947 vintage Line N pipe and hold it for potential future use, all as more fully set forth in the application which is on file with the Commission and open for public inspection. The filing may also be viewed on the Web at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC at FERCOnlineSupport@ferc.gov or call toll-free, (866) 208-3676 or TTY, (202) 502-8659.

Any questions regarding the applications should be directed to David W. Reitz, Deputy General Counsel for National Fuel, 6363 Main Street, Williamsville, New York 14221 or call 716-857-7949.

Any person may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.

Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.

Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenter's will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with he Commission's environmental review process. Environmental commenter's will not be required to serve copies of filed documents on all other parties. However, the non-party commentary, will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and ill not have the right to seek court review of the Commission's final order.

The Commission strongly encourages electronic filings of comments, protests, and interventions via the internet in lieu of paper. See 18 CFR 385.2001(a) (1) (iii) and the instructions on the Commission's Web site (www.ferc.gov) under the “e-Filing” link. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy regulatory Commission, 888 First Street NE., Washington, DC 20426.

Take notice that on August 13, 2013, Southern Star Central Gas Pipeline, Inc. (Southern Star), 4700 Highway 56, Owensboro, Kentucky 42301, filed a prior notice request pursuant to sections 157.205, 157.208, 157.213, and 157.216 of the Commission's regulations under the Natural Gas Act (NGA) for authorization to permanently abandon an injection/withdrawal gas storage well and revert two observation wells back to injection/withdrawal wells within its existing Elk City Gas Storage Field located in Elk, Chautauqua and Montgomery Counties, Kansas. Southern Star's prior notice request is more fully set forth in the application, which is on file with the Commission and open to public inspection under Docket No. CP13-531-000. The filing may also be viewed on the Web at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC at FERCOnlineSupport@ferc.gov or call toll-free, (866) 208-3676 or TTY, (202) 502-8659.

Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.

Any person may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's regulations under the NGA (18 CFR 157.205), file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.

The Commission strongly encourages electronic filings of comments, protests, and interventions via the internet in lieu of paper. See 18 CFR 385.2001(a) (1) (iii) and the instructions on the Commission's Web site (www.ferc.gov) under the “e-Filing” link. Persons unable to file electronically should submit an original and five (5) copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

Description: Town Square Energy, LLC submits tariff filing per 35.12: Application for Market Based Rate Authority to be effective 10/1/2013.

Filed Date: 8/22/13.

Accession Number: 20130822-5110.

Comments Due: 5 p.m. e.t. 9/12/13.

The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.